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

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NCHRP LRD 76 3 UPDATE OF SELECTED STUDIES IN TRANSPORTATION LAW, VOLUME 8, SECTION 3: INDIAN TRANSPORTATION LAW Lindsey Hanson, Attorney, Minneapolis, MN A. INTRODUCTION This section of Selected Studies in Transportation Law: Vol- ume 8: Indian Transportation Law, examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies. Indian law is a particularly complex area of law that is uniquely rooted in history. For that reason, this section begins by providing background informa- tion on Indians, tribes, and the history of the federal govern- ment’s Indian policy and Indian law. With this background in- formation in mind, this section goes on to discuss jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country). The section on Indian country discusses basic terms for land ownership on reservations and in Indian country more generally. These concepts are necessary to understand the cases and issues discussed in this section. Following the discussion of these foundational concepts, this document goes on to provide an overview of federal, state, and tribal civil jurisdiction in In- dian country, followed by an overview of criminal jurisdiction in Indian country. This document also explores the law related to reservation boundary disputes, the fee-to-trust process and reservation proclamations, state sovereign immunity in suits in- volving 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. The latter sections of this document explore plan- ning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government co- operation between states and Indian tribes. B. INDIANS, TRIBES, AND HISTORICAL BACKGROUND 1. Background In the 2010 Census, 5.2 million people identified as Ameri- can Indian or Alaska Native alone or in combination with other races (1.5 percent of the total U.S. population); 2.9 million peo- ple identified as American Indian or Alaska Native alone.1 The Census Bureau estimated that 20.5 percent of American Indians and Alaska Natives (alone or in combination with one or more races) live on reservations, on trust lands outside reservations, 1 2010 Census Briefs, U.S. Census Bureau, The American Indian and Alaska Native Population: 2010 (January 2012), avail- able at https://www.census.gov/history/pdf/c2010br-10.pdf (accessed May 26, 2018). or in other American Indian designated statistical areas.2 As of the 2010 Census, California (360,424) had the largest American Indian and Alaska native population (alone or in combination with one or more races), followed by Oklahoma (161,073) and Texas (144,292).3 The Navajo Nation is the largest reservation in the United States both in terms of geographical size and American In- dian population. According to the 2010 Census, an estimated 169,321 American Indians live on the Navajo Nation Reserva- tion and off-reservation trust lands.4 a. Indians5 The term “Indian” may be used to refer both to a race of people and as a political designation; these two applications of the term are not necessarily synonymous. Consider the U.S. Su- preme Court case Morton v. Mancari,6 in upholding a Bureau of Indian Affairs (BIA) Indian employment preference, the U.S. Supreme Court declared the Indian employment preference to be “political rather than racial in nature.”7 There is no single federal or tribal criterion to establish that a person is Indian.8 Government agencies use different criteria to determine who is an Indian eligible to participate in various programs. For example, the Indian Reorganization Act (IRA)9 uses this definition: 2 Id. American Indian designated statistical areas include the fol- lowing: Oklahoma tribal statistical areas, tribal designated statistical areas, state American Indian reservations, and state designated Ameri- can Indian statistical areas. 3 Id. 4 Id. A map of the United States that shows Indian lands can be found at: https://catalog.data.gov/dataset/bia-indian-lands-dataset- indian-lands-of-the-united-states. 5 See generally, William C. Canby, Jr. American Indian Law In A Nut Shell 3-9 (6th ed., West Academic 2015) (1998) (hereinafter Canby); Felix S. Cohen, Handbook Of Federal Indian Law 19-26 (LexisNexis 2012) (1941) (hereinafter Cohen); Stephan L. Pevar, The Rights Of Indians And Tribes: The Basic ACLU Guide To Indian And Tribal Rights (2002) (hereinafter Pevar). 6 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). 7 Id. at 553 n.24, 94 S. Ct. at 2484, 41 L. Ed. 2d at 302. See also, Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 480, 96 S. Ct. 1634, 1645, 48 L. Ed. 2d 96, 110 (1976); United States v. Antelope, 430 U.S. 641, 645, 97 S. Ct. 1395, 1398, 51 L. Ed. 2d 701, 706 (1977); Greene v. Comm’r of the Minn. Dep’t of Human Servs., 733 N.W.2d 490 (2007). 8 See Cohen, supra note 5, § 3.03, Definition of Indian. 9 73 Pub. L. No. 383, 48 Stat. 984, 988 (1934), (codified at 25 U.S.C. §§ 5101-5103, 5107-5113, 5115-5116, 5118, 5120-5121, 5123- 5125, and 5129 (2018).

CONTENTS A. Introduction, 3 B. Indians, Tribes, and Historical Background, 3 1. Background, 3 2. Historical Background—Federal Government Indian Policy, 4 3. Historical Background—Indian Law, 11 C. Jurisdiction in Indian Country, 14 1. Concepts Necessary to Understand Jurisdiction in Indian Country, 14 2. Civil Jurisdiction—Federal Jurisdiction in Indian Country, 17 3. Civil Jurisdiction—State Jurisdiction in Indian Country, 17 4. Tribal Jurisdiction—Tribal Jurisdiction in Indian Country, 21 5. Criminal Jurisdiction in Indian Country, 33 D. Reservation Boundary Disputes, 38 E. Fee-to-Trust Process and Reservation Proclamations, 39 F. State Sovereign Immunity in Suits Involving Tribes, 40 G. Contracting with Indian Tribes and Tribal Entities, 42 1. Introduction, 42 2. Initial Considerations: What Type of Entity Is Entering the Contract and Who Has Authority to Bind That Entity?, 42 3. Tribal Sovereign Immunity, 43 4. Dealing with Jurisdictional Issues: Choice of Law and Forum Selection Clauses, 45 5. Transactions that Relate to Indian Lands, 46 H. Acquisition of Indian Land for Public Transportation Purposes, 47 1. General, 47 2. Bureau of Indian Affairs (BIA) Grants of Right-of- Way, 48 3. State Eminent Domain Powers and Indian Land, 52 I. Federal Highway Programs Involving Indian Lands, 53 1. The Federal-Aid Highway Program, 53 2. Tribal Transportation Program (Formerly Indian Reservation Road Program), 53 3. The IRR Bridge Program, 56 4. Emergency Relief Program for Federally Owned Roads, 56 5. Federal Lands Highway Program (23 U.S.C. § 204), 56 6. Tribal Technical Assistance Program, 57 J. Federal Transit Programs Involving Indian Tribes, 57 K. Planning and Project Development Activities, 58 1. Planning, 58 2. Environmental and Related Issues, 60 L. Construction Activities, 68 1. Indian Employment Preferences and Contracting, 68 2. Tribal Employment Rights Ordinances, 71 M. Operation and Maintenance of Highways on Indian Lands, 74 1. State Enforcement of Highway Laws, 74 2. Jurisdictional Issues Carrying Out Federal Programs, 74 N. Government-To-Government Cooperation, 78 1. General, 78 2. State Approaches and Experiences, 80 3. Tribal–State Cooperative Agreements, 82 O. Conclusion, 84 2 NCHRP LRD 76