Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019) / Chapter Skim
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Pages 58-67
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58 NCHRP LRD 76 which mandate the development of statewide plans which "shall, at a minimum, consider…[t] he concerns of Indian tribal governments having jurisdiction over lands within the boundaries of the State."663 In addition, with respect to areas of the state under Indian tribal government jurisdiction, ISTEA required that the long-range transportation plan be developed in consultation with the tribal government and the Secretary of the Interior.664 Finally, ISTEA added the requirement that the STIP be developed in similar consultation for areas of the state under the jurisdiction of an Indian tribal government.665 The planning requirements for states and Indian tribal governments coupled with increased funding for the IRR program -- $191 million for years 1991to 1995 -- greatly increased the visibility of transportation issues in Indian country.
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NCHRP LRD 76 59 a. Operate within a government-to-government relationship with federally recognized tribal governments; b.
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60 NCHRP LRD 76 fice of Management and Budget on the implementation of Executive Order 13175 across the executive branch based on the agency plans and status reports.
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NCHRP LRD 76 61 purpose of the project was to provide a significant economic development opportunity for the tribe, the range "need not extend beyond those alternatives reasonably related to the purposes of the project."702 The court found that although the BIA did not consider landfill sites off the reservation, it did properly consider and analyze a reasonable range of alternatives on the reservation for meeting the goals of the project, thus meeting the requirements of NEPA.703 • Muckleshoot Indian Tribe v.
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62 NCHRP LRD 76 The Act is merely a statement of the policy of the federal government with respect to traditional Indian religious practices…. This court has concluded that with respect to the free exercise rights of plaintiffs, the conduct of defendants complied with the dictates of the first amendment.
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NCHRP LRD 76 63 The Court's decision, despite closing the door on Free Exercise claims, cautioned that "[n] othing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen.
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64 NCHRP LRD 76 Buono v. Norton, 371 F.3d 543, 548-50 (9th Cir.
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NCHRP LRD 76 65 SHPO participate in the Section 106 process in addition to the THPO.750 A programmatic agreement can only take effect on tribal lands when the THPO, tribe, or designated representative of the tribe signs the agreement.751 Off of tribal lands, the tribe must be consulted for any undertakings that affect a historic property the tribe attaches religious and cultural significance to.752 The agency official has to make "a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effect and invite them to be consulting parties."753 For undertakings off of tribal lands, the THPO does not take the place of the SHPO, but may serve as the tribe's designated representative in the consultation process if the tribe designates the THPO for this role.754 The following cases dealing with NHPA compliance relative to Indian lands are noteworthy:755 • Apache Survival Coalition v. United States756 was an action to halt construction of several telescopes on Mount Graham, Arizona, within the Coronado National Forest, based upon, inter alia, violation of NHPA's obligation to undertake an additional Section 106 process when new and significant information is brought to the attention of the federal agency.757 The court of appeals ruled that the laches standard used in NEPA cases applied to this NHPA claim.758 It concluded "that the six year period between 1985 when the Tribe first was solicited for 750 Id.
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66 NCHRP LRD 76 regulations warning that tribes might be hesitant to divulge the type of information sought.766 The decision stated that by "withholding relevant information from the SHPO during the consultation process…the Forest Service further undermined any argument that it had engaged in a good faith effort,"767 holding that "the Forest Service did not make a good faith effort to identify historic properties in Las Huertas Canyon."768 • Hoonah Indian Association v. Morrison769 dealt with what constitutes a historic "site" under NHPA.
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NCHRP LRD 76 67 [I] dentification and appropriate disposition of human remains, funerary objects, sacred objects, or objects of cultural patrimony that are: (i)
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