[Senate Hearing 110-251]
[From the U.S. Government Publishing Office]
S. Hrg. 110-251
TRANSPORTATION ISSUES IN INDIAN COUNTRY
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 12, 2007
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
C O N T E N T S
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Page
Hearing held on July 12, 2007.................................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Murkowski................................... 16
Prepared statement........................................... 17
Statement of Senator Tester...................................... 6
Witnesses
Baxter, John R., Associate Administrator for Federal Lands
Highways, Federal Highway Administration, Department of
Transportation................................................. 10
Prepared statement........................................... 12
Forrest, Erin, Director of Public Works, Hualapai Nation......... 64
Prepared statement........................................... 66
Garrigan, James, Transportation Planner, Red Lake Band of
Chippewa Indians............................................... 56
Prepared statement........................................... 59
Gidner, Jerry, Assistant Secretary-Designate; Deputy Bureau
Director, Office of Indian Services, Bureau of Indian Affairs,
Department of the Interior; accompanied by Leroy Gishi,
Division Chief, Division of Transportation..................... 7
Prepared statement........................................... 8
Kashevaroff, Don, President, Seldovia Village Tribe.............. 27
Prepared statement........................................... 30
Red Tomahawk, Pete, Transportation Director, Standing Rock Sioux
Tribe; Chairman, Indian Reservation Roads Program Coordinating
Committee...................................................... 35
Prepared statement with attachments.......................... 38
Appendix
Board of Supervisors, Navajo County, Arizona, prepared statement. 120
Dybdahl, Johanna, Chairperson, Southeast Tribal Department of
Transportation Commission, prepared statement.................. 121
Gila River Indian Community, prepared statement.................. 97
Healy, Sr., C. John, President/Transportation Director, Fort
Belknap Indian Community, prepared statement................... 104
His Horse Is Thunder, Ron, Chairman, Standing Rock Sioux Tribe,
letter with attachment......................................... 123
Ho-Chunk Nation, prepared statement.............................. 102
Polston, JoAnn, First Chief, Healy Lake Traditional Council,
prepared statement............................................. 100
Sinyon, Elaine, Tribal Administrator, Cheesh-na Tribal Council,
letter with attachments........................................ 86
Smith, Chadwick, Principal Chief, Cherokee Nation, prepared
statement...................................................... 85
Written questions submitted by Hon. Byron L. Dorgan to:
John R. Baxter............................................... 206
Jerry Gidner................................................. 208
Yellow Bird-Steele, John, President, Oglala Sioux Tribe, letter.. 94
TRANSPORTATION ISSUES IN INDIAN COUNTRY
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THURSDAY, JULY 12, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
485, Russell Senate Building, Hon. Byron L. Dorgan, Chairman of
the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We will call the hearing to order. This is a
hearing of the Indian Affairs Committee. We are here today to
discuss transportation issues with respect to Indian Country.
We will hear from both Federal and tribal representatives this
morning.
As many of us prepared to travel to this hearing this
morning, some short distances and some long distances, we might
have wondered whether traffic was going to be good or bad, or
if there was a delay in public transportation. But none of us
would have probably worried very much about whether the roads
to the Russell Senate Office Building would be impassable,
unpaved, or difficult to traverse, like members of the Hoopa
Valley Tribe in California encountered in the first photograph
we will put up.
None of us worried that a bridge over the Potomac River
might be washed away. We cross those bridges every morning
easily. We don't worry that the bridge will be washed away like
the bridge on the second photo. This is from the Potawatomi
Reservation located in Kansas.
Additionally, even the fact that we have public
transportation that we can count on is a luxury that is unheard
of in many parts of Indian Country.
A transportation system is the lifeline for any community,
making it possible for your children to go to school, families
to travel and receive health care, attend jobs, get us readily
to work. So a good transportation system allows the community
to grow economically, and something that most communities
throughout this Country take routinely for granted.
Regrettably, those in Indian Country are not able to do the
same. The statistics are really quite alarming. Motor vehicle
injuries are the leading cause of death of Native Americans
ages 1 to 34, and the third leading cause of death overall for
all Native Americans.
Death rates in motor vehicle accidents for American Indians
are nearly twice as high as for other races. Given that tribal
youth are particularly and especially at risk, I joined my
colleagues last year in successfully securing tribal
participation in the Safe Routes to Schools program. This
program encourages children to walk or bicycle to school
safely, and improves pedestrian safety in the vicinity of
schools.
Equally disturbing is the fact that American Indians have
the highest rate of pedestrian injury and death per capita of
any racial or ethnic group in the United States. I have a
photo, three that we will show. Let me show you this photo, in
which children from the Nisqually Tribe in Washington State are
forced to sprint between vehicles on a very busy highway to get
to school.
This is one of the main highways running through the
reservation. Located on one side of the highway are the largest
retail enterprises, while almost all residences and government
offices are on the other side. This photo demonstrates the
desperate need of a pedestrian crossing to enable Indian tribal
members and employees and children to safely cross and have
safe access to services on the reservation.
The poor condition of Indian Country roads is equally
distressing. It is a major contributing factor to these
troubling statistics. Seventy-six percent of BIA and tribal
roads are unimproved earth and gravel.
So how can you expect the community to thrive when basic
infrastructure needs aren't being met? A South Dakota tribal
leader told me an interesting story during a listening session
that I had in Minneapolis, Minnesota a while back. He said that
his tribe's roads were so full of potholes that drivers were
forced to zig-zag and were getting used to zig-zagging all over
the road. The way that a tribal police officer can tell if
someone was driving drunk was if they were driving straight.
[Laughter.]
The Chairman. Road maintenance in Indian Country is grossly
underfunded, estimated at less than $500 spent per road mile on
Indian Country roads, compared to $4,000 to $5,000 spent by
States. But you would not know that by looking at the
Administration's budget request, which has fallen in the past
several years, not to mention the Federal Government's trust
responsibilities.
Thankfully, tribes have been working in creative ways,
innovative ways to improve the situation.
I have one last photo. This is a before and after photo of
a residential road on the Standing Rock Sioux Indian
Reservation located in North and South Dakota. The before
picture shows the typical quality of roads in most Standing
Rock communities, and the after picture shows what the
community streets look like now thanks to the innovative
flexible financing advanced construction agreement between the
tribe and the BIA. This agreement allowed for the completion of
a $27 million project in a few years, instead of taking 20
years under private pay as you go plans. Standing Rock was the
first tribe in the Country to utilize this type of innovative
financing.
So we hold hearings in this Committee. We hold hearings on
improving housing and health care and education, economic
development. What is essential to providing all of these
necessities? What ties it together? Safe roads, good
transportation, good infrastructure.
So we are holding a hearing today to discuss the current
transportation issues in Indian Country, and to discuss
innovative and practical ways to improve tribal transportation
services.
I want to make one additional point. Indian Country is not
a Third World country. It is part of the United States of
America. But if you travel across this Country and go to Indian
reservations, you too often see people living in Third World
conditions. That has to stop. This Country has to do more to
meet its trust responsibility. We talk about that in so many
areas. Today, once again we talk now about infrastructure and
roads. Once again, our Country has a responsibility and this
Committee is going to do everything it can to see that our
Country meets its responsibilities to the first Americans.
Let me call on my colleague, Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman. I also want to
thank you for holding this hearing today on transportation,
something that is critically important. You called it the
lifeline, and I agree with that 100 percent.
You know, I have met with a lot of Native American groups
in the last six and a half months, and there are a lot of needs
out there, from health to housing to water, and roads and
transportation are critically important. As we talk about
economic development in Indian Country, where we have 50
percent, 85 or 90 percent unemployment, transportation is
critically important, whether you are talking about pedestrian
transportation or transportation for cars and trucks, or even
access to rails. I think it is important that we focus on the
things that will help drive those unemployment rates down and
make Indian Country all it can be.
So Mr. Chairman, I really appreciate your efforts in this
regard and I look forward to the hearing today.
The Chairman. Senator Tester, thank you very much.
Today, we have two panels. In the first panel, we will hear
from Mr. Jerry Gidner, Assistant Secretary-designate, Deputy
Director for the Office of Indian Services, the BIA. You may
come forward, Mr. Gidner. He is accompanied by Mr. Leroy Gishi,
Division Chief, the Division of Transportation of the BIA.
Welcome.
Mr. John Baxter, Associate Administrator of the Federal
Lands Highways, Federal Highway Administration, U.S. Department
of Transportation, is with us. Mr. Baxter, welcome.
I would tell all of you that your entire statements will be
made a part of the permanent record. We would ask you to
summarize during your presentation, and then we will inquire of
you. We will have a second panel following your presentation as
well.
Mr. Gidner, you may proceed.
STATEMENT OF JERRY GIDNER, ASSISTANT SECRETARY-
DESIGNATE; DEPUTY BUREAU DIRECTOR, OFFICE OF
INDIAN SERVICES, BUREAU OF INDIAN AFFAIRS,
DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY LEROY GISHI,
DIVISION CHIEF, DIVISION OF TRANSPORTATION
Mr. Gidner. Thank you, Mr. Chairman.
Senator Tester, Members of the Committee, I am Jerry
Gidner. I am the Deputy Bureau Director for Indian Services
within the Bureau of Indian Affairs. With me, as you mentioned,
is Leroy Gishi, our Division Chief for Transportation.
I want to give just a brief overview of our program today,
which has two major components: road construction and road
maintenance. We manage these programs in close cooperation and
in a very good relationship with both the Federal Highways
Administration and with the Indian Reservation Roads Program
Coordinating Committee. You will hear from Mr. Pete Red
Tomahawk, who is the Chairman of that committee, in the next
panel.
The construction part of our program is really driven by
the inventory. Maintaining the roads inventory is one of the
most important things that BIA does in relationship to this
program. The inventory drives the distribution of the bulk of
the Federal highways construction money. Of the $370 million
appropriated this year for roads construction, $277 million of
it is distributed in accordance with the formula that drives
the inventory.
That inventory is growing rapidly. It has grown 23 percent
since Fiscal Year 2000, although that number varies by region.
In Alaska, for example, the inventory has increased by over
1,800 percent in the last 10 years. So there are a lot of miles
of road being added to the inventory.
In Fiscal Year 2006, there were 82,000 miles in inventory
under various ownership, with 27,000 miles of those BIA roads.
As you mentioned, Mr. Chairman, approximately 76 percent of
those roads are unpaved roads. For the next Fiscal Year, we
expect inventories which we are finalizing right now for the
next year's distribution, we expect the number of miles of
roads to be in the 90,000 to 95,000 range.
The second part of the program is road maintenance. It is a
very important program, as you mentioned. It is funded by BIA
appropriations, rather than by dollars coming from the Federal
Highway Trust Fund. We have a backlog of approximately $120
million for our road maintenance backlog. Funding has been flat
or decreasing, and as you noted, many of the roads are unsafe
and deteriorating.
We have many challenges in this program. The first
challenge is that this has become a tribal shares program,
which is a good thing, but it also raises some challenging
issues. TEA-21, the precursor to SAFETEA-LU, required that we
conduct a negotiated rulemaking on the distribution of these
funds. What emerged is that the dollars that each tribe gets
depends on various factors pertaining to the roads in the
inventory.
We are seeing dramatic changes in the funding for the
regions and tribes as regions and tribes get their inventory
updated. Small tribes with fewer roads or tribes that have not
updated their inventory are seeing relatively fewer dollars
compared to other tribes, and many of those tribes are calling
for a change to the regulations.
We believe changing the regulations now would be premature.
We believe over the next 2 to 3 years, the inventory will be
essentially updated and then we will have a much better picture
of where the distribution is going to be. We think at that
time, it would be more appropriate to discuss any changes to
the formula that drives the distribution. That would also
coincide, by the way, with the timing for a SAFETEA-LU
reauthorization.
The second challenge is that SAFETEA-LU imposes on us a 30
day limit to get dollars to the tribes once we receive them
from Federal Highways. We certainly support that, but the
dollars do have to go to tribes through contracts under the
Self-Determination Act and the project does have to be on an
approved transportation improvement plan, and those
requirements can conflict.
We have worked very hard this year to streamline our
processes from mundane changes, such as simplifying the
accounting codes to make the transactions easier, to more
aggressive changes. We have created a template for the funding
agreements for the self-governing tribes which is now being
used to simplify that process. My office is finalizing a
template for the self-determination contracts to simplify that
process. Unfortunately, tribes can still not use the money
until there is a contract in place and the TIP has been
approved.
The third challenge we mentioned before is road
maintenance. Frankly, it is impossible to maintain the roads at
safe levels with the tools that we currently have.
The fourth challenge is the inventory. There are many
policy questions about what should be in the inventory, what
roads should be allowed to be in it, and how they should
contribute to the amount of dollars that each tribe receives
based on that formula. We are working with the coordinating
committee to resolve those issues and come up with a position.
We hope that we will soon have a consensus position on that. If
we don't, then BIA will just move to make a decision and decide
what should be in the inventory and what should not.
Logistically, maintaining the inventory is a great deal of
work. Because we do not have internet access, tribes do not
have the ability to enter the data themselves, unless they come
to one of our facilities to use our system. We are right now
working on creating a duplicate system that will allow tribes
to enter the data themselves, which will then be harmonized
with our system on a daily basis. We plan to have that system
available in Fiscal Year 2008. That will make the tribal data
entry and the whole process much easier.
With that, Mr. Chairman, I will conclude and would welcome
any questions.
[The prepared statement of Mr. Gidner follows:]
Prepared Statement of Jerry Gidner, Assistant Secretary-Designate;
Deputy Bureau Director, Office of Indian Services, Bureau of Indian
Affairs,
Department of the Interior; accompanied by Leroy Gishi, Division Chief,
Division of Transportation
Good morning, my name is Jerry Gidner. I am the Deputy Bureau
Director for Indian Services in the Bureau of Indian Affairs (BIA) at
the Department of the Interior. With me today is LeRoy Gishi, the
Division Chief of our Division of Transportation. We are pleased to be
here today to provide you with an overview of the BIA's Road
Maintenance Program and the Indian Reservation Roads (IRR) Program. The
IRR is jointly administered by the BIA and the Federal Highways
Administration (FHWA).
The BIA has been involved in the repair and reconstruction of roads
on Indian Reservations since the 1920s. From 1950 until 1983, Congress
appropriated annual construction and maintenance funds to the BIA to
maintain, repair and construct reservation roads on Indian
Reservations. Approximately $1.2 billion were provided during this time
for both construction and maintenance. The Surface Transportation
Assistance Act of 1982 created the Federal Lands Highways Program which
established IRR as a category of public roads providing access to or
within Indian reservations, lands, communities and Alaska Native
villages. This funding has contributed to the improvement of roads and
the replacement or rehabilitation of deficient bridges on or near
reservations throughout Indian country. Shortly after the establishment
of the IRR program under the Federal Lands Highways Program (Title 23
USC Chapter 2), only road maintenance funds were appropriated through
the Department of the Interior. Since the establishment of the IRR
Program, the Federal construction investment in BIA, tribal, state,
county and local roads and bridges that comprise the IRR system has
exceeded $4.5 billion.
Despite these efforts, there is still a great need for improving
the transportation system in Indian country. We view this as a joint
responsibility not only of Federal agencies but a shared responsibility
of state and local governments with transportation investments on or
near Indian and Alaska Native communities. Improved transportation
systems provide increased public safety and economic opportunities in
these communities. Transportation networks in Indian and Alaska Native
communities are critical for economic development stimulus by providing
access to markets. In addition, safe roads are important when
transporting people in rural areas to schools, local hospitals, and for
delivering emergency services.
The IRR comprises over 82,000 miles of public roads with multiple
owners, including Indian tribes, the BIA, states and counties.
Coordination among all of these owners is required to pool available
resources.
The BIA transportation program currently implements both the
Department of Transportation's highway trust funded IRR program as well
as the Department of the Interior's funded Road Maintenance Program.
Road Maintenance in the BIA
The road maintenance program traditionally has been a
responsibility of the owner agency. Of the 82,000 miles of IRR, the BIA
has a responsibility for 27,000 miles of roads designated as BIA system
roads. The BIA receives tribal priority allocation (TPA) funding
annually through the Department of the Interior's appropriations for
the administration of the road maintenance program for those roads.
Approximately 30 percent of the tribes with BIA roads currently
contract the road maintenance program under a self-determination
contract or agreement. The annual amount of BIA road miles has
increased by 23 percent since FY 2000. Of the 27,000 miles of Indian
reservation roads, 20,450 miles or 76 percent are unpaved roads and
6,550 miles or 24 percent are paved roads.
During the past 5 years, an annual average of $26 million has been
appropriated for the road maintenance program. Periodic condition and
deferred maintenance assessments are conducted to assess the
maintenance needs in Indian country. Maintenance activities include
patching, crack sealing, and striping of paved road surfaces, sign
repair, culvert cleaning, snow and ice removal, and other emergency
repair not eligible under the Highway Trust Fund emergency relief
program.
Road Maintenance Under SAFETEA-LU
Provisions under the Safe, Accountable, Flexible, Efficient
Transportation Equity: A Legacy for Users (SAFETEA-LU) now allow the
use of up to 25 percent of a tribe's IRR program funds for the
maintenance of any eligible Indian reservation road. These funds can be
used for the maintenance of roads and bridges as well as the purchase
of equipment upon approval of the BIA and the FHWA. This is in the
second year of implementation. There were no requests to maintain IRR
roads in the first year of SAFETEA-LU. It is important to note that the
eligible roads are all IRR and not only BIA or tribal roads and
bridges. Under these provisions, the tribes may elect to use the funds
for the maintenance of non-BIA roads. Although state and local roads
are the responsibility of the respective state and local governments
and have specific funds to maintain these roads, if these roads are not
maintained, tribal governments may utilize a portion of the IRR funds
to maintain these roads. Because this occurs within a unique tribal and
state or local government agreement, the BIA does not maintain any
information on the extent to which this may be occurring.
Indian Reservation Roads Inventory
Since November 2004, the current formula for distributing IRR
program funds based on tribal shares was implemented through negotiated
rulemaking with tribal governments. This formula utilizes data
associated with the cost of constructing roads to an adequate standard,
the usage of roads or traffic and the population of the tribe served.
The data associated with the cost and the usage is maintained in a
national database called the IRR inventory. The IRR inventory is a
database of all public roads that meet the definition of an Indian
reservation road. The IRR inventory is also used in the calculation of
the shares of funding to be allocated to a tribe in a given year. The
formula is described in detail within the IRR program regulations found
at Title 25 of the Code of Federal Regulations, Part 170 (25 CFR 170).
Each year, the inventory may be updated by tribes to reflect the
transportation needs which are ranked against the relative needs of
other tribes.
The national inventory and how it is used in the formula changed
with the implementation of the regulations in November 2004 and the
enactment of SAFETEA-LU in August 2005. These changes allowed Tribes to
use all of the IRR data in the formula calculation to generate their
annual funding. Under the old formula, not all of the data was used to
generate each Tribe's funding. Those tribes with an active program for
updating inventory data increase or maintain their relative share of
the IRR funding. Not all tribes have updated their inventory; those
that have not may have seen a reduction in their relative share of
funding under the new formula. Tribes can receive training on how to
update their inventories through the Tribal Technical Assistance
Program (TTAP) centers established through the Intermodal Surface
Transportation Equity Act (ISTEA) of 1991.
In order to expedite Tribes' ability to update their inventories,
BIA is taking steps to make a duplicate IRR database available for
Tribes to access and update information electronically. BIA hopes to
have this system available in FY 2008.
Because of new provisions in SAFETEA-LU, regulations and policy
guidance are necessary so that uniform procedures are implemented for
all tribes. The BIA is working closely with the IRR Program
Coordinating Committee (Committee), established by regulation, on the
implementation of the funding formula and the challenges in the
inventory update process. The Committee responsibilities include
providing input and recommendation to both the BIA and the FHWA for the
IRR Program. Along with the FHWA, we have been working with the
Committee and tribes on addressing the tribal concerns of the program
through an update of the regulations. Until most of the tribes have
updated their portion of the IRR inventory, any significant changes to
the formula in regulation would be premature. It is estimated that only
about 25 percent of the 562 federally recognized tribes have updated a
significant portion of their eligible inventory.
Conclusion
Thank you for the opportunity to present testimony on an issue that
is an important part of the economic infrastructure for tribes. We will
be happy to answer any questions you may have.
The Chairman. Mr. Gidner, thank you very much.
Next, we will hear from Mr. Baxter. Mr. Baxter, you may
proceed.
STATEMENT OF JOHN R. BAXTER, ASSOCIATE ADMINISTRATOR FOR
FEDERAL LANDS HIGHWAYS, FEDERAL HIGHWAY ADMINISTRATION,
DEPARTMENT OF TRANSPORTATION
Mr. Baxter. Chairman Dorgan, Interim Vice Chairman
Murkowski, Senator Tester and other Members of the Committee,
thank you for the opportunity to testify today on tribal
transportation, including the Indian Reservation Roads program
and the Federal Highway Administration's implementation of
related SAFETEA-LU provisions.
Improving safety on our roads is a national public health
issue, particularly on tribal lands where the fatality rate is
over four times the national average. More than two billion
vehicle miles are traveled annually on the Indian reservation
road system, where over 66 percent of the 82,000 miles of roads
is unimproved earth and gravel. Approximately 24 percent of the
bridges are classified as deficient.
These conditions make it very difficult for residents of
tribal communities to safely travel to hospitals, stores,
schools and employment centers. The Administration is committed
to providing safe, efficient transportation for Indian lands
and Alaska Native villages, while protecting the environment
and cultural resources.
SAFETEA-LU includes several provisions to improve the
condition and safety of the Indian reservation road systems.
SAFETEA-LU includes a substantial increase in the funding for
the program, ranging from $300 million in Fiscal Year 2005 to
$450 million in Fiscal Year 2009, for a total of $1.86 billion
over the life of the Act.
SAFETEA-LU also provides a total of $70 million for an
Indian reservation roads bridge program, resulting in a total
amount of funding for the program of $1.93 billion. This is a
40 percent increase over the funding provided for a comparable
period in TEA-21.
SAFETEA-LU strengthens the direct relationship between FHWA
and the tribes, including the authority to enter into direct
funding agreements with the tribes. In the past, the tribes
worked directly with the BIA regional offices on our programs
and projects, and BIA and FHWA administered the program with
FHWA oversight.
Now, eligible tribes have the option to enter into a
reference funding agreement directly with FHWA for their
respective share of program funding. To date, five tribes have
entered into these agreements with FHWA. We currently are in
negotiations with two additional tribes, and letters of inquiry
and interest have been received from several more tribes.
FHWA and the initial five tribes are working together for
this first construction season, and together we and the
respective tribes are dedicated to making these agreements
successful.
SAFETEA-LU also requires FHWA to complete a comprehensive
national Indian reservation road inventory of eligible
transportation facilities. The purpose of the inventory is to
assess the true need and cost for tribal transportation, to
ensure that the data of the existing inventory is accurate, and
to help streamline the procedures that tribes utilize for
updating their inventory. The inventory is the most significant
factor used to calculate the tribal shares of the IRR program
funding.
FHWA, working with BIA, is nearing completion on the task
of gathering and analyzing the data included in the current
inventory, and verifying the accuracy of the data itself. It is
our intent to continue to work with the BIA, the tribes, and
the Indian Reservation Roads Coordinating Committee to improve
the inventory annually and provide Congress a comprehensive
report on the inventory.
The goal of this process will be to ensure that the
national IRR inventory not only reflects the true needs of
tribal transportation, but more importantly, is equitable and
fair for all tribes.
We recognize that transportation is a critical tool for
tribes to improve the quality of life in their communities.
SAFETEA-LU provides tools and resources to improve tribal
transportation and the department is actively implementing
these provisions.
We are committed to providing safe and efficient
transportation options for tribal lands and to building more
effective day to day working relationships with Indian tribal
governments, reflecting respect for the rights of self-
government and self-determination based on principles of tribal
sovereignty.
Mr. Chairman, Senators, thank you again for this
opportunity. I will be pleased to answer any questions you may
have.
[The prepared statement of Mr. Baxter follows:]
Prepared Statement of John R. Baxter, Associate Administrator for
Federal Lands Highways, Federal Highway Administration, Department of
Transportation
Chairman Dorgan and Members of the Committee, thank you for the
opportunity to testify today on tribal transportation, including the
Indian Reservation Roads (IRR) Program and the Federal Highway
Administration's (FHWA) implementation of related SAFETEA-LU
provisions.
Introduction
The IRR system provides access to and within Indian reservations,
Indian trust land, restricted Indian land, eligible Indian communities,
and Alaska Native villages. The IRR Program serves over 560 federally-
recognized Indian Tribes and Alaska Native villages and currently
consists of over 82,000 miles of road, 4,500 bridges, and other
transportation facilities. These facilities link housing, schools,
emergency services, and places of employment, as well as facilitate
employment and resource use.
More than 2 billion vehicle miles are traveled annually on the IRR
system, even though it is among the most rudimentary of any
transportation network in the United States. Over 66 percent of the
system is unimproved earth and gravel. Approximately 24 percent of IRR
bridges are classified as deficient. These conditions make it very
difficult for residents of tribal communities to travel to hospitals,
stores, schools, and employment centers.
The poor road quality also affects safety. Recently, U.S. Secretary
of Transportation Mary E. Peters announced that traffic deaths on U.S.
roads were down slightly in 2006 according to preliminary figures, but
far too many lives continue to be lost. The annual fatality rate on
Indian reservation roads continues to be more than 4 times the national
average. This is a very serious problem. The Administration is
committed to providing safe, efficient transportation for both
residents and visitors, for access to and within Indian lands and
Alaska Native villages, while protecting the environment and cultural
resources.
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act--A Legacy for Users (SAFETEA-LU) includes several provisions to
improve the IRR system, with a particular focus on safety. SAFETEA-LU
also strengthens the direct relationship between FHWA and the Tribes,
including the authority to enter into direct funding agreement with
Tribes and the requirement for FHWA to conduct a National Indian
Reservation Road Inventory.
Status of SAFETEA-LU Implementation
Funding
Indian Reservations Roads Program
As authorized under SAFETEA-LU, the Federal Lands Highways Program
(FLHP) receives almost a 27 percent increase for the 5-year period of
the Act compared to the last 5 years of Transportation Equity Act for
the 21st Century (TEA-2l)--a total of approximately $4.5 billion over
the life of the Act. Direct transfer of apportioned funds to a Federal
agency, upon State request, is now allowed. FLHP funds also can be used
as the State or local match for most types of Federal-aid highway or
transit funded projects that provide access to or within Indian lands.
The IRR Program, in particular, received a substantial increase in
funding. IRR Program levels range from $300 million in Fiscal Year (FY)
2005 to $450 million in FY 2009, for a total of $1.86 billion over the
life of the Act. The funds are distributed according to a formula based
on tribal shares, which was implemented through a negotiated rulemaking
with tribal governments. Also, SAFETEA-LU increased the eligible uses
of the IRR Program funds by allowing a Tribe to utilize up to 25
percent of its share of funds for road and bridge maintenance
activities.
SAFETEA-LU also replaces the previous set-aside with a separate
authorization totaling $70 million ($14 million per year) for the IRR
Bridge Program (IRRBP) to help design and rehabilitate deficient
bridges in Indian Country. Under SAFETEA-LU, the total amount of
funding for the IRR Program, including the IRRBP, is $1.93 billion.
This is a 40 percent increase over the funding provided for a
comparable period in TEA-21.
National Scenic Byways Program
Indian Tribes have participated in the National Scenic Byways
Program since its inception under the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA). From 1992-2005 (prior to SAFETEA-LU),
FHWA provided at least $3.4 million for projects on byways with direct
tribal involvement or for byways crossing tribal lands. SAFETEA-LU
amended section 162 of title 23, United States Code, to provide the
Secretary of Transportation the authority to make grants directly to
Indian Tribes and to allow Indian Tribes to nominate Indian roads
directly to FHWA (without going through a State department of
transportation) for possible designation as a National Scenic Byway or
American Road.
FHWA has participated in tribal transportation conferences to
inform Tribes of these changes to the National Scenic Byways Program.
FHWA also has worked with the America's Byways Resource Center (Duluth,
MN) to establish a tribal liaison position within the Resource Center.
The liaison started work in May 2007, and will provide technical
assistance to Indian Tribes in establishing tribal scenic byways
programs and designating roads as Indian Tribe scenic byways.
In addition, FHWA has modified its grant application procedures so
Indian Tribes may submit grant applications directly to FHWA and has
included information on tribal participation in the National Scenic
Byways Program. In FY 2006, Tribes submitted 5 applications directly to
FHWA and 8 applications through the State departments of
transportation, requesting a total of $1.3 million. The Department
selected 12 of the projects, providing a total of $789,816. Nationwide,
FHWA received 417 applications requesting $53.4 million, and $25.5
million was provided for 309 projects.
Public Lands Highway Discretionary Program
The Public Lands Highway Discretionary (PLHD) program provides
funding to any project eligible under title 23, United States Code,
that is within, adjacent to, or provides access to Federal public
lands. For FY 2007, there are $87.3 million available for the PLHD
program. In FY 2007, unlike the past several years, projects for PLHD
program funding were not designated by Congress. Applications for the
PLHD program are being evaluated based on whether the specific project
meets the statutory criteria for the program and how well the project
addresses the Department's priorities of improving safety and reducing
congestion. For each application, we will consider the benefit of the
safety improvement, the need for the safety improvement, and the
likelihood of expediting implementation of the improvement. A similar
analysis will be done for congestion relief. We are in the process of
reviewing applications now, and will be announcing awards this summer.
Safety
Road Safety Audits
In recognition of the need to improve safety on Indian reservation
roads, FHWA has conducted several road safety audits (RSA) with Tribes.
An RSA is a formal safety performance examination of transportation
systems within a reservation or Alaska Native village and is an
effective tool for identifying existing safety issues and eliminating
them through improved planning and design. To promote their benefits,
FHWA sponsored training on RSAs and Road Safety Fundamentals with four
Tribes this past year Tohono O'odham and Navajo Nations (in cooperation
with the AZ DOT and others), Santa Clara Pueblo and Jemez Springs
Pueblo (in cooperation with the NM DOT), and Standing Rock Sioux (in
cooperation with ND and SD DOT). This training specifically targeted
local and tribal transportation experts. A document summarizing the
findings and lessons learned will be completed by the end of this year.
Additional RSAs are planned for later this fiscal year.
Also, FHWA, with the help of the Tribal Technical Assistance
Program (TTAP), continues to provide technical assistance and training
to Tribes on conducting their own RSAs. For example, FHWA has provided
funding and support to the Northern Plains Tribal Technical Assistance
Program to sponsor a Road Safety Audit Outreach Coordinator, who has
provided training and RSAs for the Spirit Lake Nation, the Winnebago
Nation, and others.
Safe Routes to Schools
The Safe Routes to School program is a federally funded, but State
managed and administered grant program established by section 1404 of
SAFETEA-LU. Each State receives not less than $1 million each fiscal
year to plan, design, and construct infrastructure-related projects
that will improve the ability of students to walk and bicycle to
school. Safe Routes to Schools funding also may be used for non-
infrastructure-related activities to encourage walking and bicycling to
school. FHWA has determined that federally recognized Tribes are
eligible sub-recipients of this State administered program. Most States
are in the early stages of implementing this new program. States with
high tribal populations, such as those in the Southwest, are reaching
out to tribal groups and encouraging them to apply for funding. For
example, in Arizona, the Safe Routes to School coordinating committee
includes tribal representatives from the Tohono O'odham and Navajo
Nations.
High Risk Rural Road Program
SAFETEA-LU established a new safety program, funded as a set-aside
at $90 million per year, known as the High Risk Rural Roads Program
(HRRRP). This federally funded, State administered program is intended
to reduce fatalities and injuries on small rural roads with above
average crash rates. Tribal roads that meet the criteria for
improvements are eligible for the funding. FHWA has undertaken
extensive outreach to Tribes on the HRRRP, including developing and
disseminating guidance and making presentations at a variety of
conferences, including National and Regional Tribal Transportation
Symposia, and Local Technical Assistance Program and TTAP meetings.
Other
Indian Reservation Road Program Changes
SAFETEA-LU made significant changes to the IRR Program and the
Federal Transit Program that will greatly assist tribal transportation.
Tribes meeting eligibility requirements now have the option of entering
into IRR Program agreements directly with FHWA for their respective
share of IRR Program funding. Section 1119 of SAFETEA-LU amended the
IRRBP to allow funding for preliminary engineering activities for the
replacement or rehabilitation of structurally deficient or functionally
obsolete IRR bridges. As a result of the changes to the IRRBP, in
consultation with the Indian Reservation Roads Coordinating Committee
(IRRCC), FHWA issued a notice of proposed rulemaking (NPRM) on June 5,
2007. The NPRM proposes a number of changes, including an explanation
of the priority process for both Bureau of Indian Affairs (BIA) and
non-BIA owned bridges, separate queues for both construction and
preliminary engineering, and a reduction in the funding ceiling for
construction of non-BIA owned bridges.
Section 1119(k) of SAFETEA-LU allows Tribes and States to enter
into road maintenance agreements for which the Tribes assume the
maintenance responsibility for the State on Indian Reservation Roads.
These Agreements are negotiated directly between the State and Tribe.
FHWA has provided an annual report to both the Senate and the House in
each of the past 2 years with the results of these agreements.
Deputy Assistant Secretary for Tribal Government Affairs
Section 1119(1) of SAFETEA-LU requires the Department of
Transportation to have, within the Office of the Secretary, a Deputy
Assistant Secretary for Tribal Government Affairs appointed by the
President. The duties of the Deputy Assistant Secretary are to plan,
coordinate, and implement the Department of Transportation policy and
programs serving Indian tribes and tribal organizations and to
coordinate tribal transportation programs and activities in all offices
and administrations of the Department and to be a participant in any
negotiated rulemaking relating to, or having an impact on, any
projects, programs, or funding associated with the tribal
transportation programs. Currently, the Deputy Assistant Secretary for
Intergovernmental Affairs is carrying out the functions prescribed for
the Deputy Assistant Secretary for Tribal Government Affairs, including
coordinating tribal transportation programs within the Department.
Direct Funding Agreements With Tribes
In the past, Tribes worked directly with the BIA Regional Offices
on IRR programs and projects, either through Direct Service Agreements,
Self-Determination Act Contracts, or Self-Governance Agreements, and
BIA and FHWA administered the IRR Program with FHWA oversight. Now,
eligible Tribes are able to enter into Referenced Funding Agreements
directly with FHWA for their respective share of IRR Program funding to
carry out the Tribes' IRR programs or projects in accordance with the
Indian Self-Determination and Education Assistance Act. While the BIA
has retained its program management and oversight role on a national
and regional level, these agreements have increased the FHWA-Tribal
government relationship on both a program and project level.
Under these direct agreements, the amount a Tribe receives equals
the amount of funding that the Tribe would otherwise receive in
accordance with the formula for distributing IRR Program funds, plus an
amount, as determined by the Department of Transportation, that would
otherwise be withheld by BIA for program or project administration. A
Tribe assumes all powers, functions, and duties that the Secretary of
Interior would have performed and that are not inherently Federal or
cannot be transferred. The agreements identify the roles and
responsibilities of each party, as well as the specific work that is to
be performed with the funds being received. A Tribe is eligible to
participate if it can provide conclusive evidence of financial
stability and management capability during the preceding three fiscal
years. Conclusive evidence exists if the Tribe had no uncorrected
significant and material audit exceptions in their annual audits.
To date, five Tribes have entered into these agreements with FHWA--
the Standing Rock Sioux Tribe from North and South Dakota, the Ramah
Navajo Chapter from New Mexico, the Chickaloon Native Village from
Alaska, the Assiniboine and Sioux Tribes of the Fort Peck Reservation
from Montana, and the Oglala Sioux Tribe from South Dakota. We
currently are in negotiations with two additional Tribes and letters of
inquiry and interest have been received from several more Tribes. FHWA
and the initial five Tribes are currently working together through this
first construction season. Technical assistance with various phases of
existing and new projects, as well as capacity building, is being
provided by FHWA. Together, we and the respective Tribes are dedicated
to making these agreements successful.
National Indian Reservation Road Inventory
SAFETEA-LU requires FHWA to complete a comprehensive national IRR
inventory of eligible transportation facilities and report to Congress
by November 2007 (23 U.S.C. 202(d)(2)(G)). The purpose of the inventory
is to develop the true need and cost for tribal transportation, to
ensure that the data in the existing inventory is accurate, and to help
streamline the procedures that Tribes utilize for updating their
inventory. The inventory is the most significant factor used to
calculate the tribal shares of IRR Program funding. Hence, it is
imperative that a Tribe's data shown in the inventory be as accurate as
possible.
The inventory includes, at a minimum, all transportation facilities
eligible for assistance under the IRR program that a Tribe has
requested, including all facilities in the BIA inventory since 1992,
facilities constructed or reconstructed with Highway Trust Fund dollars
(other than the Mass Transit Account) under the IRR program since 1983,
facilities owned by an Indian tribal government, primary access routes,
and community streets or bridges within the boundary of a recognized
Indian community or reservation or Alaska Native village.
FHWA is nearing completion on the initial task of gathering
information for the inventory. This extensive activity has included
reviewing existing data for completeness, carrying out onsite surveys
of more than 400 individual sections of road throughout Indian Country
to verify correctness of data, addressing and correcting regional and
national structural and cost data of the inventory and working with the
BIA and Tribes to eliminate the barriers that have caused rejection of
data or restriction of tribal input to the existing system. FHWA, BIA,
and the IRRCC have all worked together to eliminate roadblocks and
inconsistencies in the current inventory system, to allow easier access
to the system, and to develop clearer instructions on actual submission
requirements. In addition, FHWA is working directly with Tribes, BIA,
and other State and Federal agencies to collect data on established
costs of other eligible facilities not yet included in the existing
inventory that are eligible for use of IRR Program funds. Although
these facilities currently are not included in the formula used to
calculate the amount of funding that each Tribe receives annually, this
data will help in the determination of the true national needs of the
tribal transportation systems.
The fluidity and constant evolvement of the inventory makes this
effort a ``snapshot'' in time and interim in its nature. For instance,
a road may be in the inventory as a gravel surface road, but may be
paved in the future. This change will require the inventory to be
updated to reflect this new surface type and other changed conditions.
FHWA plans on updating this national IRR inventory annually as part of
a continuing effort of all parties involved to ensure that the national
IRR inventory reflects the true needs of tribal transportation, but,
more importantly, is equitable and fair for all Tribes.
Outreach
FHWA staff has visited tribal governments over the past several
years to see firsthand the transportation infrastructure on
reservations and also has met with individual Tribes during the annual
National Tribal Transportation Conference. We have seen and heard about
successes and partnerships between Tribes and States, but we also have
seen roads and infrastructure that are not at an acceptable level. FHWA
continues to work with numerous tribal and State transportation
organizations, the IRRCC, as well as the BIA in carrying out
informational meetings and presentations covering many transportation
issues and potential funding opportunities in locations across the
country. These meetings and visits give FHWA a valuable perspective on
the state of tribal programs and help to identify program strengths and
weaknesses.
TTAP continues to be a valuable and popular program with tribal
governments. The purpose of our seven TTAP centers is to foster a safe,
efficient, and environmentally sound surface transportation system by
improving the skills and increasing the knowledge of local
transportation professionals. This year FHWA re-competed and awarded
new cooperative agreements for TTAPs for the California-Nevada and
Alaska regions, since the prior agreements expired. FHWA awarded the
California-Nevada region TTAP to the National Indian Justice Center in
Santa Rosa, California, and the Alaska TTAP to the University of Alaska
Fairbanks Interior-Aleutians campus. While some have expressed concerns
about the change in the TTAP center for Alaska, FHWA is confident that
the cooperative agreement will be beneficial for delivering training,
technical assistance, and information to Alaska Native Tribes, villages
and communities.
FHWA also participates in research and outreach efforts to gather
and disseminate information important to tribal transportation.
Recently, FHWA contributed to the Transportation Research Board's (TRB)
study to provide information useful to tribal governments and Federal,
State, and local agencies to help in determining the state of tribal
transportation programs and the steps needed to assist Tribes in
developing the capacity to perform and manage effectively
transportation-related functions. This effort was authorized by the
American Association of State Highway and Transportation Officials
(AASHTO), through the National Cooperative Highway Research Program
(NCHRP). TRB published the results of the study May 29, 2007, in a
report entitled ``NCHRP Synthesis 366, Tribal Transportation Programs:
A Synthesis of Highway Practice.''
Conclusion
Transportation is a critical tool for Tribes to improve the quality
of life in their communities. The challenges facing us are to maintain
and improve transportation systems serving Indian lands and Alaska
Native villages in order to provide safe and efficient transportation
options for residents and access for visitor enjoyment, while at the
same time protecting environmentally sensitive lands and cultural
resources. SAFETEA-LU provided tools and resources to improve tribal
transportation and the Department is actively implementing these
provisions. We are committed to building more effective day-to-day
working relationships with Indian Tribes, reflecting respect for the
rights of self-government and self-determination based on principles of
tribal sovereignty.
Mr. Chairman, Senators, thank you again for this opportunity to
testify. I will be pleased to answer any questions you may have.
The Chairman. Mr. Baxter, thank you very much.
We have been joined by the Vice Chair of this Committee,
Ms. Murkowski. Would you wish to make an opening statement?
STATEMENT OF HON. LISA MURKOWSKI,
U.S. SENATOR FROM ALASKA
Senator Murkowski. Thank you, Mr. Chairman. I will put my
full comments in the record this morning, but appreciate the
opportunity to listen to the testimony from both gentlemen this
morning, and look forward to the comments from the other panel.
As you know, the issue of transportation and access and the
IRR program is a huge concern for us in the State of Alaska. We
continue to express our concerns and frustrations over some of
the bumps in the road, so to speak, that we continue to face. I
look forward to being able to ask those present here today to
respond to some of my questions.
[The prepared statement of Senator Murkowski follows:]
Prepared Statement of Hon. Lisa Murkowski, U.S. Senator from Alaska
Mr. Chairman. I want to thank you for bringing us today for this
oversight hearing on the Indian Reservation Roads program--a vitally
important program to end the third world conditions that plague many of
our Native communities. A vitally important program for Alaska's Native
Village's, nearly all of which are not connected to the North American
road system.
In my State of Alaska, the Indian Reservation Roads program funds
the construction and maintenance of roads and bridges within Alaska
Native villages. In many cases these roads do not carry passenger
vehicles but 4 wheelers and snow machines, which are the way that
Alaska's Native people access subsistence resources and haul their
subsistence food home. These roads form the link to the village airport
which is the only way out during the winter.
This is not the first time that this Committee has taken testimony
from the leaders of the Alaska Native community on the shortcomings of
the Indian Reservation Roads program as it is implemented in Alaska.
On June 4, 2003, the Committee heard testimony from Loretta
Bullard, Executive Director of the regional tribal consortium in
Alaska's Bering Straits Region on this issue.
Loretta told the Committee that a complete inventory of roads
eligible for IRR funding in Alaska has never been compiled. That the
Bureau of Indian Affairs never surveyed our Alaska Native villages to
identify the roads eligible for support. That tribes were given
ambiguous guidance as to which roads could be submitted to the Alaska
inventory. And that very few tribes had mileage in the inventory
because of this omission.
When Alaska tribes learned about this omission which is costing
them thousands and thousands in road funding, they attempted to submit
inventory revisions to the BIA. They were first told that no matter how
adequate their inventory submissions were--the BIA had arbitrarily
limited the amount of new miles that could be included in the
inventory. Then they were told that their submissions were not
adequate.
This caused no shortage of concern among the road engineers in the
BIA Alaska Region who contended that they could not get a straight
answer from BIA Albuquerque about the requirements for an adequate
submission. They would submit inventory that they thought was adequate
and it would be rejected without a reasonable explanation. I understand
that Alaska is not the only BIA Region that has this concern.
Alaska tribes that have miles in the inventory and are entitled to
funds have fared no better. The Petersburg Indian Association, which
had IRR funding sitting in the BIA, formulated a project to construct a
road to a subsistence site. The city of Petersburg agreed to share the
cost of constructing the road. But when it came time to construct the
road, Petersburg could not get the money to which it was entitled out
of the BIA. At the end of the Fiscal Year, the BIA turned Petersburg's
money back to the Federal Highway Administration. It took nearly a
year--and a fair amount of congressional casework and speeches--for
them to finally obtain their money.
I would like to hear that all of the issues that this Committee
identified at its 2003 hearing have been resolved. In response to
concerns about the accuracy of the BIA inventory, the Congress through
SAFETEA-LU placed the responsibility of compiling a new comprehensive
national inventory in the Federal Highway Administration. I am hopeful
that this new inventory will be equitable to Alaska. I look forward to
hearing about the progress in compiling this new inventory.
The advance testimony suggests that there are still very
significant problems with the Indian Reservation Roads program. I hope
that this hearing will be a catalyst for much needed improvement in the
program.
The Chairman. Thank you very much.
Mr. Gidner, let me first ask the question, tell me the
history of budget requests for the road funds that are
necessary and the road funds that are used in the BIA to
address these issues.
Mr. Gidner. For the road maintenance program?
The Chairman. Yes.
Mr. Gidner. Well, the general history is that the requests
have been declining for the road maintenance program.
The Chairman. And what is the purpose of that?
Mr. Gidner. Well, as you are well aware, Mr. Chairman, when
we develop a budget for a fiscal year, the Secretary is given
the target budget to meet and the Assistant Secretary of Indian
Affairs is given a target to meet, and we have to come in with
a budget that meets that target.
Unfortunately, in an area where most of our programs are
underfunded, we have to make priority decisions on what gets
more requests and what gets reduced requests. We certainly
agree that road maintenance is a very important program, but in
that budget process it has to compete with the fact that we
have some reservations that don't have 24 hour police coverage,
or have woefully insufficient police coverage.
So the short answer is, road maintenance is not getting
additional funding because, as important as it is, there are
other programs that are even more important for the safety of
the communities, and that is where the budget requests have
been.
The Chairman. Yes, but the other programs are not getting
adequate funding either. I mean, we just finished a hearing
with respect to law enforcement and the desperate needs that
exist in law enforcement, and the complaints about the lack of
BIA funding and cooperation with respect to law enforcement.
The reason I am asking you about road funding is that you
described, and I think accurately so, you have responsibility
for 27,000 miles of roads, and I believe 76 percent are
unpaved. You have seen the pictures. I have seen the pictures.
You have driven on those roads. I have driven on those roads.
Many of them are in desperately poor condition.
It is essential as we struggle to try to determine how we
build some infrastructure and opportunity on Indian
reservations that we invest in that infrastructure. I guess I
don't understand a request for less money. On the maintenance
account, the request has decreased, I guess it is the fifth
straight years, isn't it, that is has decreased?
Mr. Gidner. It may be. I am not sure of the 5-year history.
The Chairman. Are there discussions inside the agency that
would say, you know, this doesn't make much sense. We have a
crying need there, and why would we not try to find a way to
increase some funding when you have a desperate need, rather
than propose decreasing funding?
Mr. Gidner. We do have those discussions. Again, I can only
say, as I did before, road maintenance has to fight or compete
for resources with other programs that affect safety such as
law enforcement. We don't particularly like being in that
situation ourselves, Mr. Chairman, but that is where we are.
The Chairman. But do you protest? I mean, is there a pretty
aggressive debate inside before the President's budget comes
out that says, you know what, we have responsibility for 27,000
miles of road here, and 76 percent of them unpaved, and many of
them in desperate conditions with troubled bridges and so on,
and we need to at least, if not keep even, we need to increase
funding, and we certainly don't want to decrease funding? What
is happening behind the scenes?
Mr. Gidner. I think using the word aggressive to describe
our debate would be downplaying their intensity, to be honest.
We have a lot of debates, and wide-ranging, and all the players
in the room who have to fight for budgets for their programs.
We brief that with the Assistant Secretary, and he briefs it
with the Secretary. It is a fairly rigorous process, sir.
The Chairman. Mr. Baxter, you come at this from a slightly
different perspective. You are over in DOT.
Mr. Baxter. Yes, sir.
The Chairman. Describe for me again, in recent years the
flow of funding to the reservations as a result of the various
programs that you administer.
Mr. Baxter. Well, as I mentioned, SAFETEA-LU actually
resulted in about a 40 percent increase in the program compared
to previous years. We have seen increases in the Indian
reservation roads programs over the last several years, and a
substantial increase in SAFETEA-LU comparatively with other
programs in terms of overall growth of the program in the
legislation. So we have seen an increase in the dollars.
There are always issues with having enough money for the
basic needs that we have, but the program has been growing
substantially.
The Chairman. When I use this statistic, road maintenance
in Indian Country is grossly funded, it was talking about a
maintenance account at $500 per road mile in Indian Country
roads; $4,000 to $5,000 in equivalent miles spent by States.
Are you familiar with those numbers?
Mr. Baxter. I could not verify the numbers from a State DOT
versus a tribal perspective, but I suspect there are
substantial differences in the number per mile.
The Chairman. And that would obviously result in
infrastructure that is in much less--let me frame it
differently. That would result in roads that are not nearly as
well maintained on Indian reservations as they are in the rest
of the Country. Is that predictive?
Mr. Baxter. That is probably fair to say. That is part of
the reason that SAFETEA-LU also provided a provision to allow a
percentage of the Indian reservation roads program for
maintenance purposes.
The Chairman. We have testimony in the next panel from Pete
Red Tomahawk, Director of Transportation Safety and Road
Maintenance at Standing Rock. I have known Mr. Tomahawk for
many, many years. He does an excellent job, but the fact is,
the resources don't exist in sufficient quantity to make the
improvements that are necessary in the roads.
What do you and Mr. Gidner think this Committee should do
as an authorizing committee to try to continue to make
recommendations to increase the funding opportunities for these
roads? Do either of you have recommendations for the Committee?
Mr. Gidner, I thought I heard you suggest that we not make
significant changes at this point.
Mr. Gidner. I suggested we not make significant changes in
the distribution formula until that entire process has sort of
equalized, and then we can look at where the money is going and
decide if that is equitable.
As far as the amount of money, I think we all understand
that the amount of money is insufficient to meet the unmet need
in Indian Country.
Mr. Baxter. And from our perspective, I would suggest that
this is a really appropriate time to have these discussions as
we are heading into reauthorization over the next couple of
years. This is an excellent opportunity to have those debates
and discussions and formulate our positions as we go forward.
The Chairman. Ms. Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
It was a couple of years ago we had a transportation
conference, their annual conference in Anchorage, and I had an
opportunity to address those assembled from all across the
State. I asked for their assistance. I said, you know, I am
sitting on the Indian Affairs Committee, and want to know how
we can help you with your transportation issues.
What I heard from those assembled from, whether it was
Petersburg down in the southeastern part of the State or from
those who reside far up north, was a great frustration in terms
of how the funding was actually coming down to the tribes
themselves, and the delays that they had encountered.
The Petersburg Indian Association was a perfect example and
case. They had basically been told that the moneys were on the
way. They had worked with the community of Petersburg, the city
of Petersburg was going to contribute jointly to the road
project. The funding didn't come. The funding didn't come. The
funding didn't come. And so it caused some real problems within
that community in terms of the promise that had been made that
we are going to work on this jointly, and then we can't get the
money out.
Now, the good news story on that is that the situation in
Petersburg has been resolved, but it was resolved because it
was brought to my attention at that meeting and we spent about
a year with a little bit of Congressional intervention and
pushing in order to break loose that funding.
You are going to hear from the Seldovia Village Tribe here
today that they, too, have been denied money that has been
rightfully awarded to them.
Why are the tribes coming to me and coming to those of us
in Congress and telling us that the BIA is either unwilling or
unable to part with the money that has been set aside for the
Indian Reservation Roads programs?
Mr. Gidner. Well, I would first of all start by saying we
certainly are not unwilling. Our mission is to move that money
to the tribes. I am not familiar with the Petersburg example
that you mentioned, so I can't speak to the specifics of that.
We have had some problems over the past couple of years.
For one thing, we can't move the money until we get it. This
past year's continuing resolution delayed----
Senator Murkowski. This was a couple of years ago. Seldovia
also I don't think was caught in that same situation.
Mr. Gidner. OK. We are working very hard to try to
streamline the process. We have developed for self-governance
tribes a funding agreement template that can just be used with
little or no negotiation, so that as soon as we get the money,
it can be moved to the tribe.
We have developed, in my office, a similar template for the
self-determination tribes, which will be final and in use in
the very near future. We are doing these things to try to
simplify the process. We are well aware of the requirement of
SAFETEA-LU that we move the money to the tribes within 30 days
of our receipt of it.
Senator Murkowski. Are you able to do that? Are you able to
comply with that?
Mr. Gidner. Not 100 percent this year, no.
Senator Murkowski. What causes that continued delay, then,
in your opinion?
Mr. Gidner. Well, it is a combination of factors. One is we
can't get the money to the tribes until we have a contract with
them. If we get the money on day one and a tribe hasn't
submitted a proposal to us for a contract, or we haven't
finished reviewing it and we haven't finished negotiating it
with the tribe, we can't move the money until that contract is
in place.
That is not saying anybody is at fault in that, it is just
that we can't move the Federal money until there is a contract
in place. We can do more as far as working in advance with
tribes to make sure that we know what projects they intend to
pursue, and we can have those contracts lined up. We can't
finish a contract until we know how much money they are going
to get, and that can't happen until the inventory is updated.
So there are a number of dates and moving parts that have
to come together to get the money to the tribe. We think that
these templates are going to advance that. We have created a
mechanism we think will work for the self-determination tribes
to essentially treat the money up front as a pre-award amount
of money and can get it to the tribe more quickly while we work
out the details of the agreement. But the bottom line is,
because of other statutes, the tribes still cannot use the
money until there is a contract in place.
Senator Murkowski. How long does it typically take, would
you say, to get a contract from the date of request to get the
funding to the tribe?
Mr. Gidner. I am not sure I know exactly how long that
takes. I would have to get that information from somewhere
else.
Senator Murkowski. It sounds like that is probably the
biggest hangup, is what you are saying.
Mr. Gidner. Well, it is one big hangup. We are trying to
change that so it is not a hangup, but this year that can be an
issue.
Senator Murkowski. Let me ask you about the inventory,
because I have received many complaints that the regional
offices are not receiving sufficient guidance from Albuquerque
on what constitutes adequate inventory update. I know that
within the Alaska region, we have tried to comply with the
guidance that has been given, and what comes back is rejection
after rejection.
I notice in your written testimony you indicate that not
all the tribes have updated their inventory, and that only
about 25 percent of the 562 tribes have updated a significant
portion of their eligible inventory. I can tell you that in
Alaska, we are trying to do that, but we are not quite sure
what those parameters might be. We get the rejection back, and
it has been difficult to do those updates.
Can you tell me whether we are making any progress in terms
of giving that guidance to the tribes so that they can complete
their inventory?
Mr. Gidner. I think we are making a lot of progress in
making that process work better. I will acknowledge there have
been some problems and there have been some rejections when
there should not have been a rejection. That is true. We deal
with that on a case by case basis as we hear about them.
I do want to say for the Alaska region in particular, the
amount of increase in roads and inventory has gone up by over
1,800 percent in the last 10 years, which is far in excess of
the nationwide average of 23 percent.
Senator Murkowski. That is because ours weren't counted in
the first place.
Mr. Gidner. Well, that may be. I can't speak to that, I am
afraid. I should say the acceptance rate for Alaska currently
is about 82 percent. That means of the submissions that we get
in, 82 percent of them go into the inventory. The remainder are
rejected at some stage in the process for some reason.
Senator Murkowski. Let me ask Mr. Baxter a very quick
question, and then I will turn it over to Senator Tester.
One of the reasons that the Federal Highway Administration
was charged by Congress to prepare this new inventory of the
roads was that the tribes in Alaska didn't perceive, didn't
feel that the inventory that had been prepared by BIA
accurately portrayed the number of roads and the amount of
roads in the State. What is Federal Highways doing to ensure
that the new inventory that it is preparing will adequately
represent the number of eligible road miles? Are you actually
going out on the ground and counting?
Mr. Baxter. We are. We actually have three teams in Alaska
this month and in August, looking at the inventory issues and
working with BIA and the tribes to remedy some of those
situations. So we are working that very closely and actually
currently have teams in Alaska.
Senator Murkowski. Good. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you.
Senator Tester?
Senator Tester. Thank you, Mr. Chairman.
I don't know who answers this question, either one of you
can. It deals with a lot of the same stuff we have been talking
about. Who assesses the adequacy in overall road conditions in
Indian Country? Is it the Department of Transportation? BIA?
Who does it?
Mr. Gidner. It may be a joint responsibility. On a day to
day basis, it is the BIA. We maintain the backlog on road
maintenance. It is our people working with the tribal people in
the field who would have that data.
Senator Tester. OK. And so this contract that you talked
about with Senator Murkowski, that includes deficiencies and
overall road condition and need?
Mr. Gidner. I am sorry. I don't understand.
Senator Tester. The contract that you talked about, you
can't distribute any money until the contract is signed. I
would imagine that would contain things like overall road
conditions.
Mr. Gidner. Well, knowing the overall road condition is not
a precursor of the contract. The contract will include, if the
tribe wants that contract, funds for road maintenance.
Senator Tester. OK. So it is strictly funding?
Mr. Gidner. Funding.
Senator Tester. And you have a template to determine how
that is done?
Mr. Gidner. Right.
Senator Tester. Is a new contract required every year?
Mr. Gidner. Not necessarily. A lot of them go for several
years. It depends.
Senator Tester. It depends on what?
Mr. Gidner. It depends on how the contract was written and
the status of it. If it is a mature contract, it rolls over.
There are administrative things we have to do, but if it is an
ongoing contract, it is easier. I think where you might be
going, it is easier to have a contract in place if it is an
ongoing contract than one starting from scratch.
Senator Tester. OK.
Mr. Baxter, you started your testimony by saying the
mortality rate was four times higher than the national average.
Why?
Mr. Baxter. I think there are a number of reasons. We had a
good discussion with NHTSA at the last Indian Reservation Road
Coordinating Committee, and they indicated to us that in Indian
Country, seat belt usage is 55 percent, versus 81 percent
nationally.
The belt usage in Indian Country is 55 percent, versus 81
percent nationally, and that has an impact on fatality rates.
DUI, the percentage of fatalities is 65 percent versus 40
percent nationally in Indian Country. A predominant issue with
pedestrian fatalities, speed is an issue in Indian Country.
So there are a number of factors. The rule of nature of
fatalities, emergency medical response times, and obviously the
condition of roads as well.
Senator Tester. All right. How many dollars are dedicated
toward pedestrian needs? Is it a set sum?
Mr. Baxter. We have a national program for highway safety
which actually was a major increase with SAFETEA-LU from about
$650 million annually to $1.2 billion. Pedestrian safety is a
part of that. It is not broken out separately as a different
program funding category.
Senator Tester. OK.
Mr. Baxter. But those are national numbers.
Senator Tester. OK. You also stated that I think about one
in four bridges were deficient, or 24 percent, somewhere around
that neck of the woods. I assume you are using the same
standards throughout the Country, whether you are in Indian
Country or off Indian Country.
Mr. Baxter. Right.
Senator Tester. That means every fourth bridge that I drive
over when I am in Indian Country is not sufficient. How does
that rank with off Indian Country?
Mr. Baxter. I don't have the number for the national
bridges. It is a higher number than what we see in the rest of
the system. I don't have a specific number, though.
Senator Tester. If you could get that, I would be
interested to know if it is double or quadruple or what it is.
Mr. Baxter. Yes, sir.
[The information referred to follows:]
The following link provides a discussion of bridge
deficiencies that is from the 2006 Status of the
Nation's Highways, Bridges, and Transit: Conditions and
Performance report.
Senator Tester. And like you said before, you are using the
same standards.
Mr. Baxter. My understanding is that they do use the same
standard to determine whether it is functionally obsolete or a
deficient bridge.
Senator Tester. OK. So the question I have for you, Mr.
Gidner, you talked about the budget, you talked about money
that you are competing for that may have to go to police or a
myriad of other issues. But when you have situations like the
testimony that you gave and the testimony that Mr. Baxter gave,
it would seem to me that, especially when you have energy
prices that are going up, which has an incredible impact on
maintenance costs, that you ought to be screaming, screaming,
screaming. Even maintaining the budget is not adequate.
I mean, we have testimony here that talks about the
inadequacy of the roads and mortality rate and bridges and on
and on we go. Are you told, are you directed by people above
you to decrease the maintenance budget?
Mr. Gidner. The overall DOI and Indian Affairs budgets, of
course, the final decisions are made by the Secretary and the
Assistant Secretary. Within the targets we are given, we fight
very hard for the priorities that we want. Ultimately, they are
the ones who have to make the decision.
Senator Tester. So how much lower was the budget that
actually got adopted than the budget you recommended for
maintenance?
Mr. Gidner. For this year, within our discussions, road
maintenance was not given much discussion. Well, let me back
up.
Senator Tester. What I am saying is you must have come in
with a figure. Let's say it was $100. I want $100 to maintain
all the roads. And they came back and said, no, you are going
to get X amount, $50, $25?
Mr. Gidner. No, it didn't quite work like that. We worked
it out within the Bureau of Indian Affairs ourselves on
priorities. Let me back up again. The Bureau of Indian Affairs
is given a target and we are told, for this year you have to
come in 2 percent, for example, below what you had last year.
That is the target budget. The Bureau of Indian Education is
given the same sort of direction.
So within that, we talked about road maintenance. We talked
about the need for road maintenance. We were not able to get
road maintenance increases proposed.
Senator Tester. Was 2 percent an accurate figure? You were
told to come in 2 percent lower than the previous year?
Mr. Gidner. It was around 2 percent, 1\1/2\ percent to 2\1/
2\ percent.
Senator Tester. OK. You know, in some cases you may be able
to increase it 10 percent. In other cases, you might have to
increase it 50 percent, because of maintenance issues, because
of that first question I asked, and that is who assesses the
condition of the roads. It seems to me that maintenance, there
isn't anything so critically important. I mean, you could lose
the resource and then it costs you a whole lot more.
Mr. Gidner. It is, and within my jurisdiction, I have
roads, I also have Indian children, and of course they are
impacted by roads, but if I have to choose between suggesting
more money for social workers to get children out of houses
where they are being sexually abused versus more road
maintenance, I will go with the children every time.
Senator Tester. OK. And I don't mean to drag this on, Mr.
Chairman.
So what you are saying is the road budgets are in direct
competition with battered and abused children.
Mr. Gidner. Yes, and lack of police officers. And
everything else that we have to do.
Senator Tester. OK. Thank you very much. I appreciate your
testimony.
The Chairman. Senator Tester, your questions and the
answers describe once again how desperately underfunded most of
these accounts are. It is unbelievable to me. I was just saying
to Senator Murkowski, the fact is, you should not, when you are
driving around this Country in any State and drive onto an
Indian reservation, you should not be able to see the
difference in road quality. It ought to look the same, but it
doesn't, unfortunately.
I remember driving from Comayagua to Tegucigalpa in
Honduras and meandering all over the road trying to avoid all
the potholes and all the problems. You drive in parts of this
Country and drive onto an Indian reservation and you see Third
World conditions with respect to their roads.
Now, I don't know what the labyrinth of programs are for
road funding. I have most of them here on the charts. But all
the talk in the world isn't going to solve the problem. What we
need to do is describe a circumstance where when you are
driving in this Country, if you are on an Indian reservation,
you shouldn't be able to see the difference between the funding
in the rest of that State for roads and the funding on that
Indian reservation.
This describes once again how desperately short of money we
are to do what is necessary to provide for the basic
infrastructure on these reservations.
I know, Mr. Gidner, in response to Senator Tester's
question, you don't make the final decision on these judgments.
I understand and respect that, but we are trying to understand
what is happening, what is the need, and how do we find new
ways and new approaches to address the needs.
Mr. Baxter, we had an Assistant Secretary position that we
had authorized, a Deputy Assistant Secretary for Tribal
Government Affairs under the Secretary of Transportation. So we
tried under SAFETEA-LU to put in place something that would
provide some focus and a spotlight on this issue, establish a
Deputy Assistant Secretary for Tribal Government Affairs in
DOT. And 2 years after the passage of the Act, there is nobody
there. What is going on?
Mr. Baxter. Sir, Kerry O'Hare is the Deputy Assistant
Secretary for Intergovernmental Affairs and is serving in that
role. We understand that is a part-time position in the context
of her other duties, and understand the issues that have been
raised.
The Chairman. But why after 2 years has that not been
filled? Is that not a priority?
Mr. Baxter. Well, we do have that filled through this
position.
The Chairman. On an acting basis.
Mr. Baxter. Yes, sir.
The Chairman. But why have you not filled the position that
Congress authorized and established that position? Has the
Secretary of Transportation not decided that this is a
priority?
Mr. Baxter. It is a priority and we have filled the
position through this interim position, but we certainly
understand the concern that is being raised.
The Chairman. I understand you understand it. I guess my
question is, is the Secretary actively searching for someone to
fill this position? Have they been doing that for 2 years or
are they satisfied with the part-time occupant?
Mr. Baxter. I am not aware of the answer to that, but I can
research that.
The Chairman. Would you provide that to the Committee?
Mr. Baxter. Yes, sir.
The Chairman. All right.
[The information referred to follows:]
Kerry O'Hare, the Deputy Assistant Secretary for Intergovernmental
Affairs, will continue to carry out the functions of the Deputy
Assistant Secretary for Tribal Government Affairs position, in addition
to her other duties. The Federal Highway Administration (FHWA) is
committing significant resources to tribal issues. FHWA's Federal Lands
Highway program has five individuals dedicated to the Indian
Reservation Roads (IRR) program and the Office of Policy and
Governmental Affairs has one individual working full time on tribal
issues.
Let me thank both of you for coming. You know, it is my
intention to be terribly disappointed in the lack of funding
and resources for our road programs. We have asked you to come
and explain what is happening. We appreciate your willingness
to do that. We understand that you are not Secretaries of the
two agencies, but your explanation is helpful to us so that we
can then put together some approaches that might be able to
address and solve these problems.
So I thank both of you for your time today and thank you
for appearing before this Committee. Your entire statements
will be made part of the permanent record.
Mr. Baxter. Thank you.
Mr. Gidner. Thank you, Mr. Chairman.
The Chairman. Next, we will call panel two, and panel two
will be the Honorable Don Kashevaroff, the President of the
Seldovia Village Tribe in Seldovia, Alaska; Mr. Pete Red
Tomahawk, the Director of Transportation, Safety and Road
Maintenance, Standing Rock Sioux Tribe in Fort Yates, North
Dakota; Mr. Erin Forrest, the Director of Public Works,
Hualapai Nation, Peach Springs, Arizona; and Mr. James
Garrigan, Transportation Planner at the Red Lake Band of
Chippewa Indians of Minnesota in Red Lake, Minnesota.
Let me begin in this order. I will first ask the Honorable
Don Kashevaroff to testify, and then I will ask Mr. Pete Red
Tomahawk, followed by Mr. Garrigan and then Mr. Forrest.
Mr. Kashevaroff, thank you very much for being here. We
will include the complete testimony that all of you have
submitted. Mr. Tomahawk, I have read yours. It is extensive
because you are chairman of the committee that is working on
this for the tribes. But I would ask if each of you would try
to summarize in about 5 minutes. Your total testimony will be
part of the permanent record, and then we will inquire.
You may proceed.
STATEMENT OF DON KASHEVAROFF, PRESIDENT, SELDOVIA VILLAGE TRIBE
Mr. Kashevaroff. Thank you, Chairman Dorgan, and good
morning to you and Vice Chairman Murkowski and the rest of the
Committee.
Thank you, first, for holding this hearing on
transportation issues in Indian Country. It is a very important
topic, even though there are other important topics in Indian
Country that we need to address, too, as you heard earlier. But
transportation needs are vast in Indian Country, and of course
the Federal dollars are limited. We need to make the best use
of what is available.
In Seldovia, we have found that self-governance works.
Through our healthcare system and our compacting with the
Indian Health Service, we were able to redesign the healthcare
system that was limited in resources--you ran out of money
during the month under contract health care--to a system that
we provide for everybody now. We don't run out of money.
Everybody gets better care.
We are able to use the self-governance that we entered into
to meet the needs of our people, to go out and ask and talk
with the people to find out the unique situations they are in
and accomplish our goals.
So when we looked at the IRR, we decided to assume it under
self-governance, based on our experience with the Indian Health
Service and the success that we have had with the Indian Health
Service. Maybe we naively went into it thinking that it will be
just as successful and just as uncomplicated to achieve as the
Indian Health Service.
What we have done in the IRR program is we went out and
found and looked at our situations. Seldovia is located south
of Kachemak Bay, which is about 150 miles south of Anchorage.
It is a beautiful little village. If you are ever in Alaska,
please come and visit us. You will be amazed at how nice it is.
We unfortunately have a 13 mile bay between us and the road
to Anchorage. This bay is breached by ferry boats. The State
ferry runs a couple of times a week, and by a lot of plane
service, small Cessna 206s, one engine planes that go back and
forth.
Unfortunately, if the weather picks up at all, the planes
are grounded and you are basically stuck in Seldovia for the
winter--a week or two sometimes if it starts snowing. So there
are some fishing boats you can maybe catch a ride out if you
need to. If you have to have a medevac for an emergency it is
very hard to get the folks out of there if the weather is bad.
So in looking at this situation and the fact that Seldovia,
because of our lack of access, our economic development has
been slowing down. My tribe runs a small jam and jelly
business. The cost of shipping the sugar in and the jars in,
and then packaging it and shipping it all back out is too
expensive. We can't actually compete with the folks just over
at Homer. They can do it 20 cents a pound cheaper because they
don't have that extra freight added on, even though they do
have a cost of freight.
Access to jobs--we have a lot of folks that don't live
there any more because of the jobs, even though we have a lot
of jobs available. We decided that what we needed was a daily
ferry system, such as they have down in the Seattle area and
many other places in the Country, that you could have pretty
much a for-sure way of getting back and forth across the bay.
It is only 13 miles. It doesn't take very long, but even if the
weather picks up, a ferry boat can handle it and people are
used to the weather up there anyway on the water.
So we assumed the IRR program into our self-governance,
that we have had with the BIA, with the idea that could take it
in, design the best ferry--we are doing a design-build on the
ferry--and we are well underway. We started a couple of years
ago, and everything had gone good until we started negotiating
our agreement with BIA. We found out that the bureaucratic
system of delivering funds to us has caused a setback in
achieving our outcome. It has been kind of hard to do.
First off, in our agreement we negotiated, it took over 9
months to negotiate the compact, an addendum with BIA, even
though we have already compacted with them before. That was
kind of inexcusable. We kind of presented it to them, and they
took their time. It took about 9 months. When we finally got an
agreement, it was before the end of the Fiscal Year. They never
gave us the money. They instead sent it back to Federal
Highways, saying it is too late in the year, even though it was
only in August.
So the next year comes around and we go to get our money
this time, and they said, oh, your agreement is no longer
valid. You need a new agreement. So we said, OK, we will. That
was kind of weird because I had an agreement saying we will get
this money, and we are not getting it.
So we just changed the date and sent it back in, and they
said, oh, no, no. Those agreements are not good anymore even
though you already have an existing agreement. We need to have
a template agreement. Templates are fine, but they really lose
the government-to-government relationship that we enjoy on many
of the other fronts, such as the Indian Health Service.
So to make a long story short on that, we still haven't
gotten our money. We have signed an agreement. Two years have
gone by. Not only have we lost interest, but the cost of
building a ferry has gone up substantially in 2 years. We are
hoping that somewhere, sometime we are going to get some
funding and try to get our ferry project going again.
Some of the other problems that we have is the BIA not
giving out or meeting the 30 day deadline for distributing IRR
funds. The problem, as you heard earlier there, is that they
just don't do it. It is not that the tribe is sitting around
saying, oh, we won't do our contract until the money arrives,
so we are not going to get our money. No, the tribes are out
there getting the contracts as soon as possible. It is BIA
sitting on their hands and knees and waiting for a long time
before the money gets here finally, just to respond to us. By
then, we are never going to get that 30 days.
The tribes want the money. We are not the ones causing the
problem. There is somebody to blame, and it is not the tribes.
We need to get the money as soon as possible.
Some of the problems I just mentioned, it is just the whole
idea of making you have a new agreement when you already had
one. It is silly. We need to have the amendments to Title IV
that have been proposed. We need to have those type of things
implemented. We need final offer provisions in our self-
governance agreements with the BIA, such as we have with IHS,
in order to have some teeth behind what we are trying to
propose. Right now, the BIA can just stall us as long as they
want to and there is not much we can do.
I know that the Federal Highways can now do contracts,
which is good. My understanding from a couple of tribes in
Alaska is that they pay on time, which is great. We have not
chosen to go that way because those contracts, even though
Congress has said they should be using the ISDEAA, they are
not. They are missing several key components. They say right in
their contracts in the footnotes that they disagree; that they
shouldn't be using the Indian Self-Determination.
By doing that, we are missing some things such as tort
coverage, meaning that we have to buy extra insurance to cover
the projects we are doing under IRR. That is kind of silly and
is wasteful, too. For such a shortage of money, they should
just say we are going to adopt the ISDEAA program.
One other issue we have was the population data. We found
out that BIA actually counts the population based on HUD. They
don't go out and count them themselves. They use the HUD
formulas. Well, the HUD formulas don't recognize BIA compacts.
They don't recognize the service areas that we provide in. They
just recognize Alaska Native statistical village areas, which
we are not quite sure where those come from. I guess the census
department dreams them up.
So we have HUD using one formula, BIA using another
formula, IHS doing a very good job of compacting. What we need
is some consistency across the agencies in the department and
Federal Highways. They need to all be using the same system or
the same Indian Self-Determination Act, and they are not doing
that.
So what I am hoping this Committee can do is give some
guidance to the executive branch of the Federal Government to
actually treat tribes the way they are supposed to be. Instead
of trying to stop tribes from being successful, they should be
promoting tribes and getting them the money as fast as
possible. They shouldn't have any reasons not to get money to
the tribes.
Thank you very much.
[The prepared statement of Mr. Kashevaroff follows:]
Prepared Statement of Don Kashevaroff, President, Seldovia Village
Tribe
Good morning Chairman Dorgan and Members of the Committee on Indian
Affairs. It is an honor to appear before you this morning. My name is
Don Kashevaroff and I am President of the Seldovia Village Tribe
located on Kachemak Bay on the Kenai Peninsula in Southcentral Alaska.
I also chair the Seldovia Native Association, Inc., an ANCSA
corporation with land, resource and tourism ventures. While this is my
first opportunity to testify on tribal transportation matters, I have
testified before this Committee on the Indian Health Care Improvement
Act in my capacity as Chairman and President of the Alaska Native
Tribal Health Consortium, which provides health, sanitation and health
facilities and other services for 125,000 Alaska Natives. I also chair
the IHS Tribal Self Governance Advisory Committee and co-chair the IHS
National Budget Formulation Committee.
I regret the circumstances under which this hearing was postponed.
Please allow me to express my condolences to the family of Senator
Thomas, his friends, colleagues and staff. We recognize and appreciate
his service to his state and to the Nation.
The transportation needs of our communities are vast. The resources
available, while growing, fall far short of what is necessary.
Fortunately, over the past 30 years of implementation of the Indian
Self-Determination Act and nearly two decades of Self-Governance, we
have learned that by placing responsibility for addressing those needs
in the hands of Alaska Native and American Indian tribal governments we
can stretch those dollars to provide exceptional services with limited
resources.
The Seldovia Village Tribe has assumed the Indian Reservation Roads
(IRR) Program under its self-governance agreement with the Secretary of
Interior. We took this step based on a conclusion we reached after many
years of health care administration: self-governance works. Under self-
governance, Seldovia reformulated the way health care was being
delivered. We were aware of our community needs and fine tuned our
programs by listening carefully to community concerns. We make funding
go further by tailoring services to the unique conditions of our small
rural Alaska community. By proper design, we provide needed services
locally using innovative approaches sustained by diversifying the
resources available to our programs--for instance, not just IHS, but
other Federal agencies, state agencies and private partners. The result
has been better care for our members and for non-Native residents of
our region.
Using the program design skills Seldovia has developed in the
health field, we have developed a transportation program suited to the
unique circumstances of our community and the Kachemak Bay region. This
experience has culminated in the development of a land and water based
transportation system. In addition to the IRR Program for roads,
Seldovia has designed the Kachemak Bay Ferry Program and through
numerous discussions with State and local transportation departments,
with our congressional delegation and with the FHWA and BIA, we have
developed a transportation program that will benefit not only the
Seldovia Village Tribe but also the entire region. We believe the
process will provide lessons that will benefit tribes nationwide.
First, let me offer some context. Seldovia is located on the
Southern end of Kachemak Bay and does not have road access to the state
highway system. We currently access the state road system via the twice
weekly State Marine Highway Ferry to the town of Homer (service in
winter months is once a week). In this respect we have limited access
to the hospital, medical clinics, pharmacies, college, and other
services available in Homer. Freight costs for food are excessive. If
you visit the area, the rich natural resources suggest economic
opportunity. Unmet transportation needs, however, undermine viability
of economic development.
To offer economic opportunity, access to jobs, and to provide for
public health and safety and tourism, we decided to design and
construct a daily ferry. The Kachemak Bay Ferry Program will not be
used to carry hundreds of cars or require a large crew with the high
cost of operation associated with the state highway system ferries.
Rather, a smaller ferry providing daily freight and passenger service
to five underserved communities will be administered under the Seldovia
Ferry Authority and operated by a four member crew to provide frequent
and affordable access between communities.
As we learned through our direct administration of our health
programs, effective transportation service delivery depends upon the
ability to build a solid system from diverse resources. In the
transportation arena, this calls for using our IRR Program funds for
appropriate road improvements related to the ferry system. Meanwhile,
we have sought and obtained funding from other Federal transportation
programs, including the Public Land Discretionary Program, the Ferry
Boat Discretionary Fund, and SAFETEA-LU High Priority Projects.
While Seldovia has been successful in designing an innovative
program responsive to our local needs and in obtaining support from
Federal, state and local authorities, inefficiencies in the Federal
bureaucratic system for delivering program funds have caused setbacks
in achieving our planned outcomes. Let me briefly mention some of these
and offer some recommendations to the Committee.
The Need for Mechanisms Through Which FHWA and Other DOT Agencies May
Provide Funding to Indian Tribes
For more than 2 years now, the BIA and FHWA have been unable to
deliver $3.7 million in funding vitally needed for our ferry
construction program. This experience shows not only flaws in BIA and
FHWA administrative systems for delivering program funds but also that
tribes' options for receiving Federal transportation funds are limited
when the funding comes from outside the IRR Program. Seldovia had been
awarded FY 2005 funding under the Federal Lands Highway Discretionary
program. Yet, FHWA could not issue the funding directly to Seldovia,
rather these funds could be transferred to Seldovia only through the
State of Alaska or through BIA.
Seldovia opted for BIA, given that we had an existing self-
governance agreement with BIA in place, which included the IRR Program.
FHWA notified BIA of funding availability for the Kachemak Bay Ferry
project and several other tribal projects on June 24, 2005. Seldovia
prepared our self-governance ferry addendum and on November 10, 2005,
requested negotiations, which were held on December 1, 2005. The
agreement was not finalized, however, until August 30, 2006. With the
fiscal year coming to a close, BIA, rather than transferring all ferry
funds allocated to Seldovia in accordance with that addendum, returned
those funds to FHWA. In order to have those funds transferred, Seldovia
sent five letters to BIA and FHWA since January 16, 2007, has held
frequent face-to-face, telephonic and email exchanges with Federal
officials, and has had to negotiate a new ferry addendum, which was not
signed until July 2, 2007.
We have been assured that these funds will be transferred in the
coming days. Since May 2007, when OSG Director Sharee Freeman became
directly involved in reviewing Seldovia's documents, the process has
showed some improvement but much more needs to be done. These delays
are unacceptable and should not be tolerated. Just counting the period
since the Ferry Addendum was signed last August, Seldovia has been
deprived of nearly a year's worth of interest, let alone the lost
opportunities to advance efforts in the construction process. I have
been assured by other tribes in Alaska and other self-governance
tribes, as well as those tribes that were awarded Public Lands Highway
Discretionary Funds that these delays are not unique to the Seldovia
ferry.
Recommendation: Seldovia Village Tribe believes that legislation
must be enacted as soon as possible that clearly and unambiguously
authorizes DOT agencies, including FHWA to enter into ISDEAA
agreements--including compacts of self-governance--for the direct
transfer of funding to tribes. I discuss this recommendation in more
detail below.
Failure to Meet 30-day Deadline for the Distribution of IRR Program
Funds and the Need to Adopt Self-Governance Amendments
containing Final Offer Provisions
The extensive delays in distributing Federal transportation funding
are not limited to the ferry project. Seldovia has still not received
our FY 2007 IRR Program funding, nor have most other tribes that have
assumed the program under Self-Governance agreements even though, by
statute, BIA has 30-days from the time funds become available from the
FHWA to distribute those funds to tribes. This year, that 30-day
deadline expired in mid-May. Now, 90 days later, tribes are still
waiting for our IRR funds.
For tribes carrying out IRR Program activities under self-
governance agreements, these delays may come to an end soon. For those
tribes carrying out IRR Program activities under self-determination
contracts, however, further delays are expected. I refer the Committee
to the testimony of Pete Red Tomahawk, which thoroughly addresses those
self-determination contract Issues.
At a symptomatic level, the problem for self-governance tribes
stems from agency mishandling and delays with the so-called
``template'' agreements. The problem, however, goes deeper: to the
inadequacy of the negotiating process that BIA has implemented under
Title IV of the Indian Self-Determination Act. But first, let me
address the IRR ``template'' issue.
At the request of the Self-Governance Advisory Committee (SGAC) and
upon agreement of Acting Assistant Secretary Jim Cason during the
annual self-governance conference in May 2006, a Federal-tribal
workgroup formed to prepare a ``template'' FY 2007 IRR Program Addendum
that would guide Federal and tribal negotiators on terms for assuming
the IRR Program under tribes' self-governance funding agreements.
That workgroup submitted a proposed template for agency review a
year ago, in July 2006. The BIA provided a marked up version to the
workgroup in January 2007. After review by the workgroup and IRR
Program Coordinating Committee workgroups, and discussions with Federal
officials, a revised workgroup version was produced in late March with
the intent of producing a final version during the Coordinating
Committee meeting in April 2007. During the April 23, 2007 meeting of
the workgroup and BIA officials, the BIA rejected not only the tribal
changes in the March 2007 draft, but reversed itself on several of its
own positions from its January 2007 comments. A final ``template''
agreement was not approved and circulated by the agency until May 31,
2007.
The delays in the ``template'' process should be of concern to this
Committee, to tribes and the agencies. More disconcerting, however, is
how this ``template'' process has turned the Indian Self-Determination
Act on its head. For FY 2007, Seldovia and many other tribes sought
only to renew their funding agreements from prior years, without
material changes to the scope or funding of the program. Indeed, when
tribes submitted proposed FY 2007 IRR Addenda with all terms identical
to their executed FY 2006 Addenda (except the calendar dates), they
were advised by agency representatives that those proposals would be
delayed (if accepted). They were instructed to resubmit new Addenda
based on the ``template''.
Rather than providing negotiating guidance, the ``template'' became
a set of non-negotiable terms and a format binding on all tribes.
Renewal of agreements previously reached by the United States and the
Seldovia Village Tribe under the Indian Self-Determination Act through
government-to-government negotiations was rejected outright. Faced with
the threat that the agency would delay yet again the distribution of
IRR Program funding on which our program depends, we adopted the terms
and format of the FY 2007 Addendum.
Recommendation. The process failures of the FY 2007 IRR Addendum
provides further evidence as to why this Committee needs to enact up
the amendments to Title IV of the ISDEAA as rapidly as possible. Among
other things those amendments include Final Offer provisions that will
provide tribes with the option of making a final offer in negotiations
that the agency must respond to within a specific timeframe or have the
final offer deemed approved. As the development of ``template''
agreements this year has demonstrated, tribes need legislative
mechanisms to ensure that Congress' intentions in the ISDEAA are
properly carried out in the face of Federal intransigence and delay.
FHWA Program Agreements, the ISDEAA, and the Need to Expand the ISDEAA
to Other DOT Agencies
The Committee has long been aware of the BlA's problems
administering the IRR Program in accordance with the ISDEAA. In 1998
Congress clarified the applicability of the ISDEAA to the IRR Program.
SAFETEA-LU also went one step further and authorized FHWA to enter into
direct agreements with tribes ``in accordance with the ISDEAA.'' This
language reflects Congress' intent for tribes to have the discretion to
assume IRR Program and funding directly from the FHWA without having to
proceed through BIA utilizing the provisions of the ISDEAA.
Unfortunately FHWA has not read this provision in this manner and has
only agreed to agreements with Tribes that do not include many of the
core concepts that the ISDEAA addresses.
First, let me talk about some tribe's success in contracting
directly with the FHWA. As Pete Red Tomahawk's testimony stresses and
as the Chickaloon Village in Alaska has explained to me, entering into
a relationship directly with the FHWA can be positive. Indeed, although
both tribes' IRR Program funding distribution is from the same pool of
funds authorized, appropriated and allocated by formula under the IRR
Program regulations, unlike those of us working with the BIA, tribes
with FHWA agreements apparently receive their funds in a timely manner.
However, the contracts that these tribes have entered into come
with serious disadvantages from my perspective: they include footnotes
indicating FHWA does not interpret the SAFETEA-LU-authorized agreements
to incorporate important ISDEAA terms intended to enable tribes to make
their share of Federal funding go further. Indeed, those footnotes
express FHWA's interpretation that its IRR Program Agreements are not
Indian Self-Determination Act agreements. This FHWA position raises a
number of significant concerns. For example, an immediate concern for a
program whose primary purpose is roads construction, this
interpretation, if correct, will jeopardize applicability of the
Federal Tort Claims Act (FTCA), which Congress extended to tribes and
their employees carrying out ISDEAA Agreements.
As Seldovia's experience with the Kachemak Bay Ferry program has
shown, tribal transportation needs and opportunities extend well beyond
the IRR program. Tribes need the clear ability to rely on the ISDEAA to
contract or compact directly with DOT-agencies, including, for example,
the Federal Lands Highway Program (FLH), Federal Transit Administration
(FTA), National Highway Traffic Safety Administration (NHTSA), and
Federal Aviation Administration (FAA).
Recommendation. Congress needs to enact legislation that makes it
absolutely clear that tribes can utilize the ISDEAA as a vehicle to
contract or compact directly with all DOT agencies.
The Need for IRR Program Funding Formula Data to Accurately Reflect
Need
A. Inventory Data for IRR Routes Eligible to Generate Funding
Indian Reservation Roads are public roads located within or
providing access to Indian reservations or ``Indian and Alaska Native
villages, groups or communities in which Indians and Alaska Natives
reside.'' \1\ The Bureau of Indian Affairs (BIA) maintains a national
database of such routes, the ``IRR Inventory,'' which is used for the
allocation of IRR funds and also determines where IRR funds can be
used. State and county-owned roads comprise the majority of road miles
within the IRR system. Indeed, over the past 2 years, the significant
expansion of the IRR inventory has been fueled by the addition of state
and county road miles at a substantially greater rate than that of
Bureau of Indian Affairs (BIA) and tribal routes. \2\
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\1\ See 23 U.S.C. Sec. 101(a)(12); see also 25 C.F.R. Sec. 170.5
[69 Fed. Reg. 43090, 43106 (2004)].
\2\ See 69 Fed. Reg. 43,090 (2004) (stating that the IRR system is
comprised of 25,000 miles of BIA and tribal roads, and 38,000 miles of
state, county and local government roads). During the Alaska Tribal
Transportation Conference in October 2006, BIA Division of
Transportation Engineer Sheldon Kipp reported that the FY 2006 IRR
consisted of 32,000 miles of BIA and tribal roads and 53,000 miles of
state and county roads.
---------------------------------------------------------------------------
By statute, all IRR Program funds must be allocated to tribes in
accordance with the funding formula established by regulation. 23
U.S.C. Sec. 202(d)(2)(A). The Final Rule implementing the IRR Program
established the statutorily mandated formula that must be used to
allocate IRR Program funds among tribes. See 25 C.F.R. Part 170,
Subpart C.
The funding formula adopted in the IRR Program Final Rule reflected
Congress's intent that the funding distribution method ``balance the
interests of all tribes and enable all tribes to participate in the IRR
Program.'' \3\ That balancing of interests called for avoiding
substantial reallocations from the larger tribes while still addressing
the central problem that had historically left smaller tribes out of
the program: that the prior formula distributed funds based on an
inventory limited to roads built and owned by the BIA. \4\ The new
formula broadened tribal participation by allowing the inclusion of
state, county, and municipally owned IRR-eligible facilities in the
inventory so that ``actual IRR transportation needs [may] be counted
for funding purposes.'' \5\ Alaska's tribes promoted this change in the
funding formula and were among the new formula's intended
beneficiaries.
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\3\ Indian Reservation Roads, Proposed Rule, 67 Fed Reg. 51328,
51333 (2002) (emphasis added).
\4\ Although this limitation to BIA-owned roads was BIA policy, in
Alaska some state routes were included in the IRR Inventory prior to
the Final Rule, and are still in the inventory. This was due to an
appropriations rider by which Congress required the BIA to use its 1993
``Juneau Area Plan,'' a planning document, as the basis for the Alaska
IRR Inventory. The Area Plan included projects identified by the tribes
regardless of ownership. State routes included in the inventory at that
time were simply treated as BIA routes.
\5\ 67 Fed. Reg. at 51333-34.
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Now under the IRR Program regulations, formula data with respect to
roads owned by public authorities other than the BIA or tribes are
computed only at the local matching share rate (for Alaska, 9 percent).
\6\ However, the IRR regulations explicitly offer an exception whereby
inventory data from non-tribal, non-BIA-owned routes may be counted at
their full (100 percent) value: when a ``public authority responsible
for maintenance of the facility provides certification of its
maintenance responsibility and its inability to provide funding for the
project.'' \7\ State certification is not required for a tribe to
include a state-owned route in the IRR inventory for the purpose of
generating funding at the non-Federal matching rate. However, the state
must provide certification of maintenance responsibility and the
inability to fund a project if a state-owned route is to be computed at
100 percent of its cost to construct (CTC) and usage (Vehicle Miles
Traveled, VMT).
---------------------------------------------------------------------------
\6\ See 25 C.F.R. Part 170, Subpart C, Appendix C(lO); see also 25
C.F.R. Sec. 170.223 (noting that Subpart C explains how the formula is
derived and applied).
\7\ 25 C.F.R. Part 170, Subpart C, Appendix C(10)(3).
---------------------------------------------------------------------------
State governments and their transportation departments have
recognized that by certifying their inability to provide funding for
IRR-eligible roads in their respective states the IRR Program can
generate more funding overall for transportation improvements in that
state. As a result, many states routinely submit statements, letters or
enter into agreements certifying such routes for the IRR inventory that
generate funding at the 100 percent level. The State of Alaska has
refused to do this, thereby limiting the ability of tribes to add state
routes to their inventory for the purpose of generating funds. The
State's approach is prejudicial to the tribes, adversely affects
overall levels of transportation funding available to Alaska and
undermines the intent of the IRR Program regulations. This year, Alaska
has agreed to provide certification, but it is not yet clear whether
BIA has accepted the form of certification Alaska has provided.
Recommendation. The Committee should encourage BIA to promote an
equitable approach to resolving this Alaska certification issue in a
manner consistent with the terms of the IRR Program regulations.
B. Population Data
Through negotiated rulemaking, tribes and the Federal Government
agreed to an equitable funding formula that would enable all tribes to
participate in the IRR Program. The fairness of that formula, however,
depends upon the accuracy of the data used to calculate relative need.
As the BIA and FHWA contemplate revisions to the IRR Program
regulations, mechanisms, including the data appeals process need to be
established to ensure accuracy of data underlying the funding formula.
For Alaska tribes, the funding formula's population component is
inherently inaccurate due to its use of the American Indian and Alaska
Native Service Population (developed by the Department of Housing and
Urban Development (HUD)). In Alaska, HUD uses ``Alaska Native Village
Statistical Area'' to determine a tribe's service population. Yet, a
tribe or the BIA may provide housing services to members beyond that
``statistical area'' (as the Supreme Court addressed in Morton v. Ruiz,
Indians living in an Indian community near a reservation are eligible
for BIA social service programs). Seldovia's Compact with the Secretary
of Interior defines our tribe's ``Near Reservation Service Area'' to
include our members in the Town of Homer as well as Seldovia and
outlying areas. HUD, however, has refused to count these members as
part of our Tribe's service population, and rejected our formal
administrative appeal to correct that population count. In rejecting
our appeal, HUD chose not to accept the terms of our self-governance
funding agreement as adequate to establish a ``near-reservation''
service area for purposes of the NAHASDA formula regulations. Rather,
HUD issued a determination that the entire state is a service area, and
that since there are no ``reservations'' in Alaska, Seldovia is a tribe
without a reservation. Thus, our near-reservation service area, though
recognized by Compact, does not exist for HUD.
Furthermore, the data appeals provisions of the IRR Program
regulations (25 C.F.R. 170.231) contain several drafting problems that
have undermined the intent and the utility of this appeals process. The
drafting flaws in these sections of the regulations have been
identified by the IRR Program Coordinating Committee and a Federal BIA
workgroup as requiring technical correction. Such a correction will not
likely be in place for another year or more.
Recommendation. Congress must exercise oversight authority to
assure that the formula data used to allocate IRR Program funding are
accurate. Congress should ensure that IRR Program regulation revisions
correct the unfair use of HUD data to determine tribal population and
that data appeal provisions provide appropriate procedures that allow
tribes to correct inaccurate data contained in the IRR Program
inventory in a timely manner.
Conclusion
I hope my comments this morning lead to productive action to
improve the delivery of transportation services to Alaska Native and
American Indian communities. I welcome your questions and look forward
to continuing to work with you on these critical issues.
The Chairman. Thank you very much for your testimony.
Next, we will hear from Pete Red Tomahawk. He is of the
Standing Rock Tribe. He is the Standing Rock Sioux
Transportation Director, but he has also been the twice-elected
Chairman of the Indian Reservation Roads Program Coordinating
Committee, which is a tribal advisory body established by the
BIA.
So Mr. Tomahawk, thank you very much for being with us
today. We appreciate your work.
STATEMENT OF PETE RED TOMAHAWK, TRANSPORTATION
DIRECTOR, STANDING ROCK SIOUX TRIBE; CHAIRMAN,
INDIAN RESERVATION ROADS PROGRAM COORDINATING COMMITTEE
Mr. Red Tomahawk. Thank you, Mr. Chairman and Members of
this Committee. My name is Pete Red Tomahawk. I am the
Transportation Director for the Standing Rock Sioux Tribe and
twice-elected Chairman of the IRR Coordinating Committee. I
have worked in the transportation field for over 20 years.
I am honored to be here today. I want to thank you, Mr.
Chairman, and this Committee for granting our letter of request
for an oversight hearing on tribal transportation issues in
Indian Country.
But before I get into that, Mr. Chairman, I want to express
my condolences and the condolences of the Standing Rock Sioux
Tribe to the family of Senator Craig Thomas and to this
Committee. I was saddened to hear of the death of this admired
man. Cancer has touched me and my family. Both of my brothers,
Wilbur and I are cancer survivors. I have the highest respect
for Senator Thomas's dedicated public service to the people of
Wyoming and to this Country. He will be missed.
I am proud that the Chairman of the Senate Indian Affairs
Committee is the North Dakota tribes' Senator. I thank you for
supporting over 560 federally recognized Indian tribes and
promoting Indian self-determination. You are a good friend of
the Indian tribes, as is this Committee and its hard-working
staff. I want to thank you and Congress for the passage of
SAFETEA-LU and the funding increases you included for the IRR
program.
The BIA road system is primarily a rural road system that
is owned by the U.S. Government. What rural Indian communities
need to succeed are safe roads that connect our communities,
and roads that provide access to the national transportation
system, and continuing the good working relationships tribes
are building with State DOTs to ensure that State
transportation improvement programs, the STIPs, reflect the
transportation needs of Indian Country.
It is working well, Mr. Chairman. I commend this Congress
and this Committee for promoting tribal-state consultation and
coordination regarding transportation in SAFETEA-LU.
I want to begin by sharing some tribal successes made
possible by Congress when it included provisions in SAFETEA-LU
that benefited Indian tribes. Today, Indian tribes are taking
greater responsibility for transportation planning, design,
construction and road maintenance thanks to improvements
Congress included in SAFETEA-LU, partnering with State
Departments of Transportation and local governments on road
construction projects, receiving their first tribal transit
grant, working with tribal TERO offices to employ native labor
to provide jobs in Indian Country; using innovative financing
techniques to build and reconstruct, safe roads and community
streets; and assuming the duties of the United States for the
IRR program by contracting directly with the Federal Highway
Administration as the Standing Rock Sioux Tribe has done.
Indian tribes are achieving these successes even though we
operate on shoestring budgets. Tribes carry out identical
transportation functions as States and local governments, yet
have only a fraction of the resources. Indian tribes also
achieve success by overcoming BIA's stubbornness, wedded to
outdated practices.
I will cover just two of my written recommendations: road
maintenance and road safety. Congress must link road
maintenance with road safety. Road maintenance and road safety
go hand in hand. Poor road maintenance is a silent killer. If
tribes don't have adequate funds to maintain our roads, native
people will continue to be killed or injured in traffic and
pedestrian accidents in numbers well above the national
average.
Invest in BIA road maintenance programs. The funding
increases for the IRR program are working. More tribes are
building more roads thanks to the increases Congress authorized
in SAFETEA-LU.
On the other hand, the funding level of $26 million for the
BIA road maintenance program is a national disgrace. Lack of
proper road maintenance contributes to the appalling highway
fatality statistics in Indian Country. I urge Congress to
target Federal resources to where the need is greatest.
Congress should increase funding for the BIA road maintenance
program to at least $150 million annually.
The $26 million budgeted for the BIA road maintenance
program is wholly inadequate. The majority of the funds in the
BIA road maintenance program pay salaries. Very little is left
for supplies and equipment. Tribes which choose to assume the
BIA road maintenance program are forced to supplement it with
tribal resources, and are now using up to 25 percent of their
IRR program construction dollars to subsidize the BIA road
maintenance program.
The Administration's use of the Program Assessment Rating
Tool (PART) to justify reductions in funding for the BIA road
maintenance program is misplaced. The PART evaluation of the
BIA Road Maintenance Program shows that States and counties
neither construct nor maintain routes serving Indian
reservations.
So tribes must use what resources they have to patch and
repair deteriorating roads. Highway fatalities and injuries in
Indian Country document the need for more, not less, funding
for the BIA Road Maintenance Program. A 1999 study estimated
that the average annual cost to maintain a gravel road was
$4,160 per year for grading, resurfacing, including re-
graveling. If Congress appropriates $4,160 for only the 34,885
miles of BIA and tribally owned roads included in the IRR
program inventory, it would need to appropriate $145 million
annually for the BIA Road Maintenance Program. In 1999, diesel
gas was $1.40 per gallon. Today, it is over $3.00 per gallon.
If I leave you with one message today, Mr. Chairman, it is
prevention. Congress cannot appropriate the millions of dollars
needed to address all of the transportation needs of Indian
Country, but I am asking Congress to make tribes directly
eligible for highway safety programs that could make a
difference in Indian Country. My recommendations for improving
traffic safety in Indian Country are for Congress to create a 2
percent set-aside for tribes in the High-Risk Rural Road
Program. Make tribes direct recipients of Safe Routes to School
and Highways for LIFE Programs; provide funding to improve
school bus routes in Indian Country; establish an Indian
Reservation Road Safety program for Federal Lands Highway
offices within the Department of Transportation, and fund it at
$50 million to reduce the incidence of native deaths and
injuries; make grant applications simple and easy to fill out
so that more tribes apply for the funds.
Make the BIA reorganize the BIA Indian Highway Safety
Program. That office is not working as it should. Tribes
appreciate the increased funding Congress included in SAFETEA-
LU for this program, but the BIA Indian Highway Safety Program
has not coordinated nor consulted with Indian tribes and tribal
organizations such as the Intertribal Transportation
Association, ITA, NCAI, and the IRR Program Coordinating
Committee regarding traffic safety in Indian Country. The
National Highway Traffic Safety Administration and the BIA must
ensure that this important BIA program works and promotes
``best practices'' in Indian Country.
My written testimony lists the appalling statistics that
show that Native Americans suffer injury and death driving and
walking along reservation roadways at a rate far above the
national average. Motor vehicle injuries are the leading causes
of death for Native Americans ages 1 through 34 for the
Aberdeen, Billings, and Navajo areas, and had motor vehicle-
related death rates at least three times greater than the
national average.
On a personal side, Mr. Chairman, I lost my niece, my
brother Wilbur's eldest daughter Nickie Red Tomahawk in a
rollover accident 16 years ago. She wasn't wearing a seat belt.
She was thrown from the car and died at the scene. She was 19.
Unfortunately, I have not been able to shield other families
from the grief my family has endured. I was asked by a
gentleman, who is paying you to do this, Mr. Red Tomahawk, in
looking at the advocacy for prevention? My comment was, if I
could prevent one family from enduring the emotions that we
have suffered due to this crash in taking our niece and our
daughter, all the successes that we have done in prevention are
worth it.
There is no ``golden hour'' on Indian reservations. Traffic
fatalities and injuries take a terrible toll in Indian Country.
We can prevent a serious accident through greater education,
greater law enforcement, sobriety checkpoints, seat belts and
child restraints, better engineered roads, and increased
funding for emergency medical services.
As you are well aware, Mr. Chairman, there is no golden
hour coming from a rural town in a rural community which lack
vehicles, staff, and training and supplies. These are the four
E's. If Congress targets resources for these programs, Indian
Country will see a decrease in what can only be described as
alarming statistics.
In conclusion, Indian tribes are making gains in
transportation, but there is so much more tribes could do to
improve the condition of Indian reservation roads if the
resources were there. This is a health and safety issue. We are
losing lives and suffering injuries and measures needs to be
taken to prevent this great loss and drain on our limited
tribal resources.
I invite this Committee and its staff to come out to Indian
Country and see what tribes have accomplished and what
challenges still remain. I invite this Committee to also attend
the meetings of the IRR Program Coordinating Committee to see
how tribal representations are working to improve
transportation programs in Indian Country.
Thank you, Mr. Chairman, and this Committee for inviting me
to testify this morning.
[The prepared statement of Mr. Red Tomahawk follows:]
Prepared Statement of Pete Red Tomahawk, Transportation Director,
Standing Rock Sioux Tribe; Chairman, Indian Reservation Roads Program
Coordinating Committee
I. Introduction
Good morning Mr. Chairman and Members of the Committee on Indian
Affairs. My name is Pete Red Tomahawk. I am the Standing Rock Sioux
Transportation Director. I am the twice-elected Chairman of the Indian
Reservation Roads (IRR) Program Coordinating Committee, the Tribal
advisory body established in 2005 by BIA regulations for the IRR
Program to provide advice to the BIA and Federal Highway Administration
(FHWA) regarding the IRR Program. I am also the Chairman of the
Northern Plains Tribal Technical Assistance Program which represents 26
Tribes in North Dakota, South Dakota, Wyoming, Montana, and Nebraska,
and the Native American Injury Prevention Coalition which distributed
thousands of child car seats donated by Ford Motor Company to Indian
families. I am also the former Co-Chairman of the joint Tribal-Federal
Transportation Equity Act for the 21st Century (TEA-21) Negotiated
Rulemaking Committee which drafted the BIA's regulations for the IRR
Program before they were finalized by the Department of the Interior. I
have worked in the Tribal transportation field for over 21 years.
I want to express my condolences and those of the Standing Rock
Sioux Tribe to the family of Senator Craig Thomas and to this
Committee. I was saddened to hear of the death of this admired man.
Cancer has touched me and my family. Both my brother Wilbur and I are
cancer survivors. I have the highest respect for Senator Thomas'
dedicated public service to the people of Wyoming and to this country.
He will be missed.
The Standing Rock Sioux Reservation straddles North and South
Dakota. We have approximately 11,000 enrolled members, more than 2,500
miles of Indian Reservation Roads and a land base of 2.3 million acres.
The Lewis and Clark Trail runs through the Communities of Cannon Ball,
Fort Yates, Kenel and Wakpala, four of our eight districts. The
Standing Rock Sioux Tribal Council and our Chairman, Ron His Horse Is
Thunder, recognize the importance of transportation infrastructure as a
key to our Tribe's future economic and social well being.
The Tribe is working with other transportation stakeholders, the
States of North Dakota and South Dakota, county governments and the
Federal Government, to improve our transportation system. For that
reason, the Tribe has assumed responsibility for the Secretary of the
Interior's IRR Program duties under an historic agreement with the FHWA
as authorized by the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU). In May
2007, the Tribal Council elected to assume the Secretary's duties for
the BIA Road Maintenance Program which the Tribe will carry out under
an Indian Self-Determination Act (ISDA) contract beginning in FY 2008.
II. Key Recommendations to Improve Tribal Transportation Policies
Nearly 20 years ago, this Committee introduced legislation to
overhaul the Indian Self-Determination Act. The legislation, which
became P.L. 100-472, recognized the growing capability of Tribes to
assume control over Federal programs. The Indian Self-Determination Act
empowered Indian Tribes by transferring control to the Tribes and
providing them the financial resources to succeed. The same thing must
happen in the field of transportation. What this Committee said in 1987
is true in 2007:
``The conditions for successful economic development on Indian
lands are essentially the same as for any other predominantly
rural community. There must be community stability, including
adequate law enforcement and judicial systems and basic human
services. There must be adequate infrastructure including
roads, safe water and waste disposal systems, and power and
communications utilities. When these systems are in place,
Tribes are in the best position to implement economic
development plans, taking into account the available natural
resources, labor force, financial resources and markets.'' \1\
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\1\ S. Rep. No. 100-274, 100th Cong., Sess., p.4.
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Our key recommendations to Congress and the Federal agencies to
improve transportation policies in Indian country generally, and for
the IRR Program in particular, which I elaborate upon more fully in my
testimony, are as follows:
1. Fund the IRR Program for the next reauthorization in
installments that increase annually by at least $25 million
from $475 million in FY 2010 to $600 million in FY 2015, and
restore the obligation limitation deduction exemption that
existed for the IRR Program under the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA); increase funding
for the IRR Bridge Program from $14 million to $50 million in
the next reauthorization with increases of at least $10 million
annually;
2. Increase funding for the BIA Road Maintenance Program to at
least $150 million annually to promote traffic safety and to
ensure that the Federal and Tribal investment in transportation
infrastructure is maintained;
3. Enforce the statutory requirement in SAFETEA-LU which
mandates that the BIA must make IRR Program funds ``immediately
available'' for the use of Indian Tribes within 30 days of the
BIA's receipt of the funds from the FHWA;
4. Simplify the award process by which Federal transportation
funds are distributed to Indian Tribes by creating uniform
grant eligibility, application, and administration criteria;
5. Develop model funding agreements for use by the Department
of the Interior and the Department of Transportation to
facilitate the efficient transfer of transportation funding and
program authority to Indian Tribes;
6. Insist that the BIA and FHWA complete the comprehensive
national transportation facility inventory update authorized in
SAFETEA-LU to properly document all Tribal transportation
facilities and to protect the integrity of the IRR Program
funding formula;
7. Encourage the President to fill the position of Deputy
Assistant Secretary for Tribal Government Affairs established
under SAFETEA-LU;
8. Increase the number of Department of Transportation programs
which Tribes may participate in as direct funding recipients
from the Federal Government rather than as sub-recipients
through the States (e.g., Safe Routes to Schools Program, High
Risk Rural Roads Program, and the Highways for Life Program);
9. Establish a Federal Lands Highways Safety Program for Indian
Reservation Roads, establish a Tribal set aside for the High
Risk Rural Road Program, and increase funding for the Federal
Transit Administration's (FTA) Tribal Transit Grant Program to
$50 million annually;
10. Increase funding to the successful Tribal Transportation
Assistance Programs (TTAPs) to at least $2.5 million annually
to increase technical training and promote awareness in Indian
country of ``best practices'' in transportation planning,
design, construction, maintenance, and highway safety measures;
11. Promote the use of innovative financing techniques in
standard Indian Self-Determination contracts and self-
governance compacts to provide Tribal governments with better
tools to reduce their road construction backlog; and
12. Carry out right-of-way reform in Indian country to reduce
costs and expedite the design, construction and reconstruction
of Tribal roads and bridges.
The Indian Reservation Roads Program is predominantly a rural roads
program. Congress should invest in highway and surface transportation
projects in rural areas as well as metropolitan areas. If rural America
and Indian country are to prosper, there must be rural connectivity and
reliable access to the national transportation system.
III. Tribal Transportation Successes
Indian Tribes have achieved many successes in the transportation
field over the last several years. More than ever before, Tribes are
working in partnership with local government and State departments of
transportation on mutually beneficial projects. With the enactment of
SAFETEA-LU, Tribes are working on a government-to-government basis with
the Federal Highway Administration (FHWA) and the BIA to improve
transportation systems in Indian country. Indian Tribes have:
taken greater control of transportation programs: five
Indian Tribes, including the Standing Rock Sioux Tribe,
negotiated historic IRR Program and funding agreements with
FHWA, as authorized under SAFETEA-LU, to assume the Secretary
of the Interior's duties for the IRR Program;
assumed the authority to approve PS&E (plans, specification
& estimate) packages, thereby maintaining better control over
construction scheduling and cost;
used the authority under SAFETEA-LU to allocate up to 25
percent of their annual IRR Program allocation for road
maintenance needs to maintain Tribal infrastructure built with
IRR Program funds;
witnessed the joint Federal-Tribal initiation of SAFETEA-
LU's Tribal Transit Grant Program which was a model of
government-to-government relations. The Federal Transit
Administration (FTA) consulted with Indian Tribes, responded
favorably to Tribal recommendations, received applications from
nearly 100 Indian Tribes, and awarded over 60 transit grants to
eligible Tribal recipients in FY 2007;
collaborated with Members of Congress and FHWA Administrator
Capka to successfully reverse an FHWA policy that would have
prevented Tribes from being eligible sub-recipients of SAFETEA-
LU's Safe Routes to Schools Program grants. Tribal access to
these funds will permit Tribes to contract with States to
promote, develop and improve safe walking and bike routes to
schools for elementary and middle-school children;
collaborated with States on comprehensive highway safety and
transportation and land use plans (NDDOT and Standing Rock),
worked on cooperative ventures to improve traffic crash
reporting on Indian reservations (SDDOT and the State's Indian
Tribes); and jointly worked on construction, employment and
materials testing (Eastern Shoshone and Northern Arapaho Tribes
and Wyoming DOT);
partnered with State DOTs on IRR Program highway projects
funded through the Public Lands Highway Discretionary Grant
Program which brings additional capital to Indian country by
financing projects that otherwise could not be built by Tribal
governments from other funding sources;
instituted safety measures such as the child restraints and
reduced infant and child deaths, cutting these rates
dramatically; and
brought third-party lenders to Indian country to help Tribes
finance road construction projects which have saved Tribes
money that would otherwise be consumed by inflation and
additional mobilization expenses.
Indian Tribes celebrate these successes, and they want to see them
repeated throughout the country. These examples can serve as ``best
practices'' in transportation planning and government-to-government
cooperation. Tribal governments are better positioned today to tackle
problem areas in Tribal transportation than ever before, and they can
save lives by intelligent planning, better design, implementing highway
safety programs and conducting regular road maintenance and periodic
road safety audits.
We just need adequate resources and sensible Federal transportation
laws, regulations, and policies which aid, rather than hinder us, in
getting the job done.
IV. Indian Reservation Roads Are Not Safe Roads
Despite this progress, we need Congress and the Administration to
partner with Tribal governments to dramatically reduce highway injuries
and fatalities that plague Indian communities at rates several times
above the national average. My grandchildren live on the Standing Rock
Sioux Reservation. I want them and all Native American children to have
a safe and healthy future. We must do more to keep them safe when they
walk to school, ride a bus, or jump into their parents' cars and
trucks. We must educate them early to buckle up and not to drink and
drive so that when it is their turn to get behind the wheel, they will
be responsible drivers. Tribal communities must also change bad
behaviors and set a good example for our youth.
Congress and the Administration must also do their parts. Tribes
are struggling to find the funds necessary to meet the tremendous
transportation needs in Indian Country. Congress and the Administration
must recognize that Indian Tribes have the most rudimentary
transportation infrastructure in the country and lack the funds needed
to maintain roadways in a safe condition. Tribal transportation
programs have too few personnel to attend to required activities. \2\
Indian Tribes should be treated as equal partners. The significant
progress Tribes have made in the last two decades to assume direct
responsibility for their transportation systems should be applauded and
rewarded by giving Tribal governments the financial resources they need
to build and maintain safe roads and save lives. Transportation
planning, design, construction, and maintenance are not occasional
occurrences, and Tribal governments must have the resources they need
to carry out this core governmental function. No one else can do it
better than the Tribes themselves.
---------------------------------------------------------------------------
\2\ ``Transportation Planning on Tribal Lands,'' Melissa Savage,
National Conference of State Legislatures, August 2006, p.1.
---------------------------------------------------------------------------
Adequate funding levels are needed if we are to design safer roads
with features such as guard rails, rumble strips, clearly visible
signs, reflective markers, and wide, level shoulders. We must increase
law enforcement patrols to enforce traffic laws and respond to
accidents more quickly. We must provide adequate Emergency Medical
Services and associated medical facilities so that prompt medial
assistance is available to the injured within the critical ``golden
hour'' after an accident. And we must adequately maintain routes in
Indian country so that poor road maintenance does not continue to be a
major contributing factor to traffic accidents in Indian country. Poor
road maintenance is a silent killer that preys on the distracted
mother, the sleep-deprived father, the inexperienced son or daughter,
and the aunt or uncle who drive while impaired.
A. Grim Statistics
Our future goals, for safe, well maintained streets are clear, but
the present reflects a grim reality. Native Americans suffer injury and
death driving and walking along reservation roadways at rates far above
the national average.
Motor vehicle injuries are the leading cause of death for
Native Americans ages 1-34, and the third leading cause overall
for Native Americans; \3\
---------------------------------------------------------------------------
\3\ ``Safety Belt Use Estimate for Native American Tribal
Reservations,'' National Highway Traffic Safety Administration, DOT HS
809 921, Final Report, October 2005, p. 1.
The motor vehicle death rate for Native Americans is nearly
twice as high as other races; \4\ motor vehicle crashes were
the leading cause of death among Native Americans age 1 to 19,
and the Aberdeen, Billings, and Navajo Areas had motor vehicle-
related death rates at least three times greater than the
national rates; \5\
---------------------------------------------------------------------------
\4\ Id.
\5\ Center for Disease Control, Injury Center, Atlas of Injury
Mortality Among American Indian and Alaska Native Children and Youth,
1989-1998, Executive Summary (www.cdc.gov/ncipc/pub-res/
American_Indian_Injury_Atlas/05Summary.htm).
Native Americans in South Dakota are three times more likely
to be killed in a motor vehicle accidents than the rest the of
State's non-Native population; from 2001 to 2005, over 25
percent of individuals who lost their lives in traffic
accidents in South Dakota were Native American even though
Native Americans comprise only 8.3 percent of the State's
population; \6\
---------------------------------------------------------------------------
\6\ ``Improving Motor Vehicle Crash Reporting on Nine South Dakota
Indian Reservations,'' South Dakota Department of Transportation, June
2007.
The South Dakota Department of Transportation (SDDOT),
working with ICF International, Inc., Interstate Engineering,
Inc., and the State's Indian Tribes, in a recently published
report, found that 737 accidents (or 64 percent of all motor
vehicle accidents) on nine reservations in South Dakota in 2005
were not reported; \7\
---------------------------------------------------------------------------
\7\ Id.
123 North Dakotans were killed in traffic accidents in 2005,
an increase of 23 percent over 2004; 4,360 North Dakotans were
injured. Eighty-eight percent of the fatal accidents in North
Dakota occurred in rural areas (nearly 9 out of every 10
---------------------------------------------------------------------------
fatalities );
According to estimates by the National Safety Council, the
economic cost in 2005 for each fatality in terms of lost wages,
medical expenses, administrative expenses, motor vehicle and
property damage, and employer costs, exceeded $1.14 million for
each life lost and over $50,000 for every person injured. In
2005, for North Dakota alone, those figures translate to a cost
of nearly $360 million for the State's 123 traffic fatalities
($140.2 million) and 4,360 traffic injuries ($218 million); \8\
---------------------------------------------------------------------------
\8\ ``North Dakota Vehicle Crash Facts for 2005,'' North Dakota
Department of Transportation, Crash Facts (www.nd.gov/dot/dlts.html).
5,962 fatal motor vehicle crashes were reported on
reservation roads between 1975 and 2002 with 7,093 lives lost.
The trend is on the increase, up nearly 25 percent to over 284
lives lost per year in the last 5 years of study; \9\
---------------------------------------------------------------------------
\9\ ``Fatal Motor Vehicle Crashes on Indian Reservations 1975-
2002,'' National Center for Statistical Analysis, National Highway
Traffic Safety Administration, DOT HS 809 727, Technical Report, April
2004, p. 1.
-- 76 percent of the fatalities were not seat belt or child
safety seat restrained compared to 68 percent nationally; \10\
---------------------------------------------------------------------------
\10\ Id.
-- Since 1982, 65 percent of fatal crashes occurring on
reservations were alcohol related compared to 47 percent
nationwide; \11\
---------------------------------------------------------------------------
\11\ Id., p. 2.
According to information presented by the Michigan Tribal
Technical Assistance Program (Michigan Technological
University), nearly three-quarters (73 percent) of Native
American children under age 5 who died in traffic accidents
were not in a child safety seat. Less than 7 percent were
wearing a seat belt. More than half of these fatalities could
have been prevented if these children had been restrained; \12\
---------------------------------------------------------------------------
\12\ See ``Race and Ethnicity in Fatal Motor Vehicle Traffic
Crashes 1999-2004,'' National Center for Statistics & Analysis, DOT HS
809 956, Technical Report, May 2006, p. 14.
NHTSA data shows that approximately 3 out of every 4
fatalities on Indian reservations were not restrained at the
time of the motor vehicle accident. In 2002, only 16 percent of
motor vehicle fatalities on reservations were restrained; \13\
and
---------------------------------------------------------------------------
\13\ ``Safety Belt Use Estimate for Native American Tribal
Reservations,'' NHTSA, DOT HS 809 921, October 2005, p. 1.
American Indians have the highest rates of pedestrian injury
and death per capita of any racial or ethnic group in the
United States. \14\
---------------------------------------------------------------------------
\14\ ``Pedestrian Safety in Native America,'' FHWA-SA-04-007
Technical Report, September 2004.
These statistics are shocking and bear witness to the consequences
of maintaining the status quo concerning Federal Tribal transportation
policies. I am troubled by the disparity between national traffic
safety statistics and the statistics coming out of Indian country.
According to the National Highway Traffic Safety Administration
(NHTSA): ``The Department has made transportation safety its highest
priority. The Secretary has mandated an ambitious DOT-wide safety goal
to reduce the traffic fatality rate to no more than 1 fatality per 100
million vehicle miles traveled (VMT) by the end of 2008.''
We have over 11 million VMT in the IRR Program inventory, yet the
average number of Native Americans killed in motor vehicle accidents
annually throughout NHTSA's 28-year study was 213. While the number of
fatal crashes in the Nation during the same period declined 2.2
percent, the number of fatal motor vehicle crashes per year on Indian
reservations increased 52.5 percent. \15\
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\15\ ``Fatal Motor Vehicle Crashes on Indian Reservations 1975-
2002,'' p. 2.
---------------------------------------------------------------------------
If Tribal governments, the Departments of the Interior and
Transportation, and State DOTs are to reverse the traffic fatality
rates among Native Americans, Congress will need to direct more
resources to the many factors that contribute to highway fatalities
than are presently available. Many traffic accidents that occur on
reservation roads can be prevented through application of the four
``Es'':
1. Education;
2. Enforcement;
3. Engineering; and
4. Emergency Medical Services.
B. Invest in Prevention
If I leave you with one message today, Mr. Chairman, it is
``prevention.'' As much as I wish it, Congress will not appropriate the
billions of dollars needed to redress all the unmet transportation
needs in Indian country in next year's appropriations acts. But I am
asking Congress to identify and fund those preventative measures that
Federal, State and Tribal governments can take to reverse the
consequences of years of neglect of Tribal transportation
infrastructure, as well as to help us curb the societal behaviors which
contribute to making Indian reservation roads the most dangerous roads
in America.
But it must be a combination of resources to reconstruct and repair
unsafe roads, provide law enforcement, emergency medical services, and
educate Native American communities to make highway safety a priority.
Any one component alone, without the support of the other components,
will not be as effective.
I speak from experience regarding the damage that traffic
fatalities cause to Tribal families. My niece Nickie (Nicole) Red
Tomahawk, my brother Wilbur's eldest daughter, was killed 16 years ago
in an automobile accident on the Reservation. She lost control of the
SUV she was driving. It rolled over. She was thrown from the vehicle
and died at the scene.
Nickie was 19. She had a bright future ahead of her: college, a
job, marriage, and children. She would be 35 years old today with her
own family. The accident is still fresh in our families' mind. Every
day our family prays to the Great Spirit for her.
People ask me why I am so insistent on safety. If I can prevent a
single motor vehicle fatality and save another family from experiencing
the tragic loss we experienced then we are all successful. I believe in
the four Es and want to share highway safety measures and road safety
awareness with every Tribe. From 1996-2005, however, 71 residents of
the Standing Rock Sioux Reservation were killed in motor vehicle
accidents. It was the number one killer on our Reservation.
I now turn to the specific recommendations to improve the delivery
of transportation services in Indian country.
V. Recommendations to Improve Federal Transportation Policies in Indian
Country
Tribes are assuming greater responsibility for transportation
planning, design, construction and maintenance. TEA-21, SAFETEA-LU, and
the IRR Program regulations have created additional opportunities for
Indian Tribes to interact with State Departments of Transportation on
mutually beneficial transportation projects, to negotiate road
maintenance agreements with State governments that prolong the useful
life of IRR-financed routes without the approval of the Interior
Secretary, to conduct long range transportation planning, hire their
own engineers to finalize PS&E packages, and consult with Metropolitan
Planning Organizations and Regional Planning Organizations on long-term
transportation planning goals. Mr. Chairman, we must encourage these
partnerships so that consultation is the norm and all governments work
to achieve mutually agreed-upon transportation goals. This can be the
future of the Indian Reservation Roads Program if Congress and the
Administration will take the following actions:
1. Increase Funding for the IRR Program in the Next Highway
Reauthorization Bill to Meet Tribal Transportation Needs of the
21st Century
The backlog of unmet transportation construction needs in Indian
country is in the tens of billions of dollars. It hinders economic
development, education, and the delivery of housing and health care to
millions of Native Americans who reside on Indian reservations simply
because it raises the cost of doing business on Indian reservations.
Infrastructure should be a Tribal resource, but it is not. It is a
hazard.
It is not exceptional for Indian Tribes to operate one- and two-
person transportation departments. At Standing Rock, I and my assistant
comprise the entire Transportation Department. While State Departments
of Transportation, city and county governments and Metropolitan
Planning Organizations (MPOs) are staffed with engineers and other
professionals to plan transportation projects and work with
stakeholders to prioritize transportation projects, Tribal governments
do not have comparable resources to operate complimentary
transportation programs. \16\ Until the Federal agencies request and
Congress appropriates more resources, Tribal governments will always be
playing ``catch up'' with their State and local government
counterparts. Indian country cannot be expected to rectify our physical
transportation infrastructure needs if we do not also have the
financial resources to properly staff and operate Tribal government
departments to be capable of coordinating with our Federal, State and
local government counterparts.
---------------------------------------------------------------------------
\16\ National Conference of State Legislatures, p. 2.
---------------------------------------------------------------------------
According to data compiled by the Associated General Contractors of
America (AGC), since 2004 the construction industry has been hit by a
series of significant price increases impacting a variety of basic
construction materials. It was AGC's estimate that a ``realistic
inflation target for construction materials appears to be 6-8 percent,
with periods of 10 percent increases quite possible.'' \17\ These cost
increases outpaced consumer and producer price indices significantly.
According to the AGC report, for the 12 months ending August 2006, the
cost of inputs for highway and street construction was up 13.8 percent,
the producer price index (PPI) for ``other heavy construction'' was up
10.3 percent, and the index for non-residential buildings was up 8
percent. \18\ The report noted that: ``The highway construction index
is driven to a greater degree than the building construction indexes by
the cost of steel bars . . . and plates (for bridges), ready-mixed
concrete, asphalt, and diesel fuel, all of which have experienced
double-digit cost increases in the past 12 months.'' \19\
---------------------------------------------------------------------------
\17\ ``AGC's Construction Inflation Alert,'' Reported by AGC Chief
Economist Ken Simonson, September 2006, http://www.agcak.org/akancasn/
doc.nsf/files/7DBB5CEFBE545B13872571 FF0080B299/$file/
AGCsConstructionInflationAlert.pdf.
\18\ Id., p. 2
\19\ Id.
---------------------------------------------------------------------------
Congress authorized $450 million for the IRR Program for FY 2009.
If Tribes are to maintain the positive gains made in TEA-21 and
SAFETEA-LU and keep up with construction inflation which is running
into double digits in many BIA Regions, we respectfully request that
Congress authorize funding increases to the IRR Program in the next
highway reauthorization bill of at least $25 million annually, combined
with the restoration to the IRR Program of the obligation limitation
exemption which existed prior to TEA-21. These funding increases for
Indian reservation roads are the absolute minimum needed to keep up
with inflation, let alone meet the growing needs of Indian country.
Congress must sustain and continue its commitment to improving
transportation infrastructure on Indian reservations if the gains of
the last few years are to be maintained. This commitment will spur
economic development on Indian reservations more than any other single
Congressional action.
2. Increase Funding for the BIA Road Maintenance Program Within the
Interior and Related Agencies Appropriations Act
Funding for the BIA Road Maintenance Program is a national
disgrace. The Administration's use of the Program Assessment Rating
Tool (PART) Performance Measurements to justify annual reductions to
the BIA Road Maintenance Program is shortsighted and fails to protect
these valuable taxpayer-funded infrastructure investments. The Office
of Management and Budget's road budget makes no economic sense and
squanders taxpayer money. Failing to adequately budget for the BIA Road
Maintenance Program also violates Federal law.
When, in SAFETEA-LU, Congress authorized Tribes to spend up to 25
percent of their IRR Program dollars for maintenance, Congress
expressly stated that:
``The Bureau of Indian Affairs shall continue to retain primary
responsibility, including annual funding request
responsibility, for road maintenance programs on Indian
reservations. The Secretary [of Transportation] shall ensure
that [IRR Program] funding made available under [section 204(c)
of Title 23] for maintenance of Indian reservation roads for
each fiscal year is supplementary to and not in lieu of any
obligation of funds by the Bureau of Indian Affairs for road
maintenance programs on Indian reservations.''
23 U.S.C. Sec. 204(c), as amended.
The opposite of what Congress intended in SAFETEA-LU is occurring.
As funding for the IRR Program goes up as authorized under SAFETEA-LU,
the Administration submits budgets to Congress to reduce funding for
the BIA Road Maintenance Program. Newly built or reconstructed roads
must be maintained if they are to meet their design life and provide
safe passage for people, goods and services.
Poorly maintained roads in the Dakotas have cracks from frost
heave, rutted pavement from tire wear, prairie dog damage and faded and
worn pavement markings. These compromised conditions contribute to
traffic accidents by degrading the pavement surface and can contribute
to a driver losing control in snow or rain and at high speeds. \20\
---------------------------------------------------------------------------
\20\ ``Road Safety Audit for Improvements to Standing Rock Sioux
Tribe Reservation Roads,'' Hamilton Associates, October 2005, pp. 10-
11.
---------------------------------------------------------------------------
The BIA Road Maintenance Program is so poorly funded that there is
no allowance for even emergency road maintenance needs to address life
threatening circumstances that result from a ``catastrophic failure or
natural disaster.'' As stated in the IRR Program regulations, examples
of emergency maintenance include ``ice and snow control, traffic
control, work in slide areas, repairs to drainage washouts, retrieving
hazardous materials, suppressing wildfires, and repairing the ravages
of other disasters.'' 25 C.F.R. Sec. 170.812. Every BIA Region
experiences emergency road and bridge maintenance needs yet lacks the
resources to respond to them.
The following table illustrates the see-saw funding levels for the
BIA Road Maintenance Program since 1980.
In recent years, the BIA Road Maintenance Program budget, as a
percentage of the IRR Program appropriation for the same year, has
fallen below 10 percent. In 1990, Congress appropriated $30.598 million
which represented 37.7 percent of the combined maintenance and
construction budgets. But by 2000, road maintenance as a percentage of
available maintenance and construction funding had fallen to 9 percent
and funding dropped to $26.437 million.
At its high watermark fifteen years ago, in 1992, the BIA Road
Maintenance Program received $41 million and accounted for 25.7 percent
of the combined road maintenance and construction appropriation
allocation for the IRR Program. According to data in the Roads
Inventory Field Data System (RIFDS), between 1996 and 2006, the IRR
Program inventory grew nearly 74 percent, from 49,132 miles to 85,454
miles. If the Administration's FY 2008 funding request for the BIA Road
Maintenance Program is approved by Congress, Road Maintenance funding
will fall to $26 million, or 6.1 percent of total maintenance and IRR
Program construction funds, its lowest percentage level in over 56
years.
To spend six cents of every dollar on road maintenance when other
public authorities spend many times that amount does not protect the
investment which the Unites States and Indian Tribes have made in
transportation infrastructure. This funding gap also exacerbates the
backlog of unmet construction need by cutting the useful life of roads
in half and will lead to more traffic injuries and fatalities. The lack
of adequate road maintenance funding hinders every other form of
financial assistance to Indian country, thus making it more difficult
for the United States and Indian Tribal governments to achieve their
stated Indian policy goals.
a) The PART Performance Measurement of the BIA Road Maintenance Program
Misses the Mark
The Administration's PART Performance Measurement acknowledged that
state and county governments provide more resources per mile than the
BIA. It noted that the majority of the BIA road system (\2/3\ of the
system) is unimproved and earth surface (dirt) and, ``therefore,
requires far more extensive methods to maintain for public use.'' \21\
The PART evaluation of the BIA Road Maintenance Program concedes that:
---------------------------------------------------------------------------
\21\ See OMB's Program Assessment Rating Tool Performance
Measurement for the BIA Road Maintenance Program
(2004)(www.whitehouse.gov/omb/expectmore/detail/l0002352.2004.html).
``The problem is (1) local public entities are refusing to use
their HTF [Highway Trust Funds] funding to reconstruct their
roads/bridges when they have met their design life, forcing
Tribes to redirect their IRR HTF funding to reconstruct these
roads/bridges; and (2) local public entities do not maintain
their roads adequately requiring these roads/bridges to be
reconstructed more frequently. This results in ineffective use
of BIA road maintenance resources and Tribal HTF resources.''
\22\
---------------------------------------------------------------------------
\22\ Id.
Is it any wonder that the BIA Road Maintenance Program is scored by
OMB as not demonstrating results? But rather than recognizing that the
poor performance ofthe BIA Road Maintenance Program is due in large
part to insufficient funding, and requesting additional funding to
address this problem, the Administration has used the poor PART
Performance Measurement as a justification for seeking less funding for
the BIA Road Maintenance Program. Recognizing that under Administration
policies, funding is tied to the PART Assessment, the IRR Program
Coordinating Committee, in January 2007, asked the BIA to have
officials responsible for the PART Performance evaluation of the BIA
Road Maintenance Program to brief the Committee on the evaluation, and
identify ways to improve the Program's rating. The BIA has been
unresponsive and this briefing still has not occurred.
It is the United States' statutory obligation under SAFETEA-LU and
other Federal laws to maintain the IRR Program system of roads. Common
sense dictates that if taxpayer dollars are used to finance a public
road in Indian country, the United States should also ensure that funds
are adequate to ensure that the full useful life of the public road is
met. Are not the roads over which millions of Native Americans and
others travel each day just as important to the Federal Government's
trust responsibility to Tribal resources as the land over which the
roads lie?
The authority granted Indian Tribes in SAFETEA-LU to use up to 25
percent of their annual IRR Program funds for maintenance purposes does
not excuse the Interior Department of its statutory and moral
obligation to keep IRR Program roads safe and adequately maintained.
b) Indian Reservation Roads Cost More to Maintain But Receive Less
In January 2007, the Coordinating Committee provided BIA officials
with statistics (Caterpiller Performance Handbook, 1999) that showed
that the typical 5-year cycle maintenance costs for a gravel road--the
predominant road type in Indian country--is $4,160 per year per road
mile for grading, resurfacing, and re-graveling.
To demonstrate how bad the shortfall in maintenance funding is, if
Congress appropriated the 1999 estimate of $4,160 for the 34,885.3
miles of just the BIA- and Tribally-owned routes now included in the
BIA's RIFDS, made no adjustment for inflation, and excluded funding for
routes owned by States, counties, townships, etc., and appropriated an
additional $20 million to maintain the approximately 1,200 BIA- and
Tribally owned bridges included in the IRR Program inventory (which
represent only 27.5 percent of the 4,301 IRR Bridges), the Road
Maintenance Program budget would be $165.122 million for FY 2008
($145.122 million + $20 million). The Administration's FY 2008 Road
Maintenance request of $26 million is only 15.75 percent of the
$165.122 million figure.
The road maintenance funding estimate I have proposed excludes any
funding to maintain routes and bridges now included in RIFDS which are
owned by public authorities other than the BIA and Tribes. But, as
noted by OMB, many of these roads are being and frankly must be
maintained by Tribal governments in order to provide critical access to
Tribal communities. \23\ In fact, as of today, there are 86,759 miles
in RIDFS (51,873 miles of non-BIA and Non Tribally owned routes) and
4,301 bridges, owned by both Federal, Tribal, State, county, township,
and other State subdivisions.
---------------------------------------------------------------------------
\23\ Id.
---------------------------------------------------------------------------
If Tribes and the Federal Government invest taxpayer dollars to
build and reconstruct roads in Indian country, it makes sense to
adequately maintain these routes to improve their useful life. If
pennies are spent on road maintenance, dollars will need to be spent on
road reconstruction, and many more dollars on the societal cost of
traffic fatalities and injuries.
NCAI and many Tribal leaders, including Standing Rock Sioux
Chairman Ron His Horse Is Thunder, have requested at least a $100
million funding level for the BIA Road Maintenance Program. The BIA has
acknowledged that it requires at least $120 million to annually
maintain BIA-owned roads and bridges, $50 million per year for bridge
rehabilitation and replacement, and $100 million per year for upgrading
and expanding transit services and systems. \24\
---------------------------------------------------------------------------
\24\ ``Transportation Serving Native American Lands,'' TEA-21
Reauthorization Resource Paper, BIA (May 2003), p. 32.
---------------------------------------------------------------------------
Given the stark statistics discussed above, we respectfully request
that Congress appropriate at least $150 million for the BIA Road
Maintenance Program to maintain IRR Program roads and bridges to a
minimally adequate standard.
3. The BIA Must Comply with SAFETEA-LU's Mandate to Distribute
Available IRR Program Funds For the Use of Indian Tribes Within
30 Days of Receipt of the Funds
One of the biggest problems I have witnessed in the operation of
the IRR Program is the unnecessary delay by the BIA in distributing IRR
Program allocations among the 12 BIA Regions and, from these Regional
Offices, to the Tribal governments that have chosen to contract the IRR
Program and BIA Road Maintenance Program under the ISDA. Congress was
clear in SAFETEA-LU when it amended the law to require that:
``Not later than 30 days after the date on which funds are made
available to the Secretary of the Interior under [section 202
of Title 23] funds shall be distributed to, and available for
immediate use by, the eligible Indian Tribes, in accordance
with the formula for distribution of funds under the Indian
reservation roads program.''
23 U.S.C. 202(d)(2)(E)(i)
The reality is that the BIA does not distribute IRR Program funds
within 30, 60, or even 90 days of receipt from the FHWA. On the one
hand, the BIA claims that it cannot transfer the IRR Program funds
until it has self-determination contracts or self-governance compacts
in place, and on the other hand, it has dragged its feet in finalizing
mutually acceptable model funding agreements. It cannot have it both
ways.
Contrary to this statute, each August, BIA Regions return tens of
millions of dollars of IRR Program funds to BIA Headquarters because
these funds were received too late in the fiscal year, while Tribes are
practically begging for construction funds. Short construction seasons
mean that priority road projects do not get built and the cost for
building roads in Indian country continues to outpace funding.
The failure by the BIA to develop acceptable ISDA model contracts
and Annual Funding Agreement addenda further compounds the problem
Tribes are experiencing in delivering transportation services to their
communities. That is one reason why the Standing Rock Sioux Tribal
Council opted to enter into direct negotiations with FHWA in 2005 to
contract the IRR Program under an agreement with FHWA rather than
continue to negotiate ISDA construction contracts with the BIA. Under
our IRR Program Agreement with FHWA, our Tribe receives its IRR Program
allocations timely, even this year when Congress passed four continuing
resolutions before the final FY 2007 joint resolution was enacted in
February.
It is bad enough when an agency practice runs directly against its
stated policies and hinders the efforts by Indian Tribes and BIA
Regions to improve transportation systems in Indian country. It is
worse when a law is enacted by Congress to facilitate the transfer of
funds from the BIA to Tribal governments and the law is ignored or made
irrelevant by agency inaction. The 30-day rule is the law. It promotes
the objectives of the IRR Program. The BIA should obey it.
4. Simplify the Federal Grant and Contract Application and Award
Process for Tribal Governments
Why are Tribal communities lagging so far behind the Nation in
reducing fatal traffic accidents? It is as if national campaigns to
reduce traffic accidents and deaths end at reservation boundaries. I am
afraid that resources are not reaching reservation communities at the
rate that they should. These shortfalls in funding have a devastating
effect on Native Americans who are dying and suffering injuries at
unacceptable rates.
If Indian Tribes are eligible recipients of Federal transportation
funding, for the programs to work in Indian communities, the money must
reach the intended beneficiaries. That is not the case presently.
Part of the problem lies in the cumbersome, and wholly separate
processes by which Indian Tribes must apply for Federal transportation,
transit, and traffic safety grants administered by multiple Federal
agencies (BIA, FHWA, NHTSA, FTA, Federal Aviation Administration (FAA),
etc.) or Federal transportation grants administered through the States
(Safe Routes to Schools, High Risk Rural Roads, Highways for Life,
etc.).
We strongly recommend that agencies within the Department of
Transportation (Federal Lands Highway, FTA, NHTSA, and FAA) develop a
simplified contract document for Tribes. This will encourage more
Tribes to apply for these grants and bring the benefits of the Federal
programs to Indian communities where they are most needed. Direct
Federal funding of Tribes through Tribally protective and appropriate
government-to-government agreements streamlines Tribal access to
Federal program funds by removing artificial barriers to these grant
funds by eliminating the unnecessary, costly and time consuming process
of requiring Tribes to contract with the States for receipt of Federal
transportation dollars. The Safe Routes to School Program and High Risk
Rural Roads Program are just two examples among many of the Federal
programs that should be directly available to Indian Tribes.
As noted above and as discussed in the 2006 report by the National
Conference of State Legislatures, most Tribal governments lack the
personnel and resources to administer multiple Federal grants and
contracts with widely varying terms and conditions. Complex,
conflicting grant conditions and reporting requirements hinder
efficient Tribal administration of transportation programs and
projects. The agencies should develop a single grant application
process with one annual deadline as Congress directed the Secretary of
Transportation to do for the States in applying for Highway Safety
Program grants under SAFETEA-LU. See 23 U.S.C. Sec. 402(m), as amended,
sec. 2002(d) of SAFETEA-LU, 119 Stat. 1521-1522.
Developing a simplified agreement, which takes into account the
unique legal status of Tribes and respects Tribal sovereignty, will
improve program performance and Tribal accountability.
Under SAFETEA-LU, Congress directed the BIA to also ``establish a
similar simplified process for applications for grants from Indian
Tribes under [Chapter 4 of Title 23]'' as well. Id. To date, I am not
aware of any action taken by the BIA's Indian Highway Safety Program
(IHSP) to consult with Indian Tribes, the Nation's Tribal Technical
Assistance Programs (TTAPs), or the IRR Program Coordinating Committee
concerning the development of a simplified single grant application
process for Highway Safety Program grants. Despite numerous invitations
to the former Program Administrator of the BIA's IHSP to attend an IRR
Program Coordinating Committee meeting, no representative of that
office has ever attended a Coordinating Committee meeting. This has
occurred even though a number of our meetings were held in Albuquerque,
New Mexico where IHSP offices are located.
I trust that the next Program Administrator will actively consult
and work with Indian Tribes, the TTAPs, and the Coordinating Committee
to implement SAFETEA-LU's mandate.
5. Implement Model IDSA Contracts and Agreements so that Indian Tribes
May More Easily Assume the Secretary of the Interior's Duties
for the IRR Program
Congress recognized the need for a standardized model contract in
the self-determination context in 1994 and legislated, in P.L. 103-413
(1994), the content of a non-construction Indian Self-Determination Act
(ISDA) contract. See 25 U.S.C. Sec. 450l. This is known as the ``model
Section 108'' ISDA contract. Similar model agreements should be
developed to speed the distribution of Federal transportation dollars
to Indian Tribes as direct recipients.
The IRR Program Coordinating Committee and other Tribal advocates
provided a sample Title I Indian Self-Determination contract to BIA
officials in the summer of 2006 for use in the IRR Program. To date,
the BIA has not approved a sample ISDA contract for Indian Tribes. Only
last month did the BIA's Office of Self-Governance issue a proposed
Title IV Self-Governance Model Indian Reservation Roads Addendum for
use by Self-Governance Tribes. Tribes are still waiting for the
Interior Department's awarding officials and attorneys to provide a
response to the Tribally proposed model Title I ISDA contract for the
IRR Program.
Interior Department attorneys have incorrectly concluded that
Tribes must negotiate a separate agreement if they wish to use
innovative financing techniques to pay for eligible IRR Program
projects. This is shortsighted and legally unnecessary. It will hinder
the use of innovative financing techniques by Tribes by raising the
transactional costs associated with flexible financing arrangements.
Because of the Interior Department's intransigence on this issue,
Tribes are being forced to use outdated, overly burdensome ISDA
contracts that BIA Regional Office Awarding Officials are ``used to''
negotiating. These contracts do not reflect many ofthe hard won
improvements to the IRR Program that Tribes negotiated with BIA and
FHWA in the final IRR Program regulations, implemented in November
2004, and which Congress included in SAFETEA-LU. These improvements
include Tribal approvals of Plans, Specifications & Estimate (PS&E)
packages, full annual advance funding, and innovative financing
techniques by which Tribal governments, if they choose, can leverage
IRR Program funds to help finance road projects.
The delay in the award of IRR Program contracts hurts every Tribe's
bottom line and reflects poorly on the BIA's administration of the IRR
Program. Roads are not being built in a timely manner and present
continuing safety risks. Construction seasons are limited in many BIA
Regions. The ideal time to bid out construction jobs--to lower cost--is
in the middle of winter, not in the spring or summer months when the
BIA is now releasing the majority of IRR Program funds.
Delays in the ISDA contracting process, a process that has been in
place for over 30 years, only make transportation construction more
costly. Model IRR Program funding agreements will help bring the BIA
into compliance with SAFETEA-LU's 30-day payment mandate and better
serve Indian country.
It should be a goal of the Department of Transportation and
Department of the Interior to lower the cost of doing business in
Indian country. It will allow Tribes to put Federal funds into the
roads and bridges that can improve the quality of life of our
communities, not waste money serving a complicated bureaucracy. This
goal cannot be met until the BIA approves and widely distributes to the
BIA Regions acceptable model ISDA agreements.
6. The BIA and FHWA Must Complete a Comprehensive National Inventory of
Transportation Facilities Eligible for Assistance Under the IRR
Program
The inventory of the Indian Reservation Roads Program is growing at
a dramatic rate. In 2005, there were 62,319 road miles in the BIA's
RIFDS. In 2007, there are more than 85,000 road miles in RIFDS, an
increase of more than 37 percent. BIA System roads, those dirt, gravel,
and paved roads owned by the BIA, are only a subset of all eligible IRR
Program routes. The entire IRR Program System of roads eligible for
funding under the IRR Program is also comprised of routes owned by
Tribes, States, counties, townships, and other Federal agencies.
The IRR Program formula, by which Federal funds are apportioned
among the Nation's federally recognized Indian Tribes, places heavy
emphasis upon road inventory miles. See 25 C.F.R. Sec. 170.201 et seq.
The integrity of the IRR Program is dependent upon accurate and
complete information on each Indian Tribe's IRR Program inventory of
eligible roads.
a) SAFETEA-LU Mandates a Comprehensive Update
When Congress passed SAFETEA-LU in 2005, Congress directed the
Secretary of Transportation, in cooperation with the Secretary of the
Interior, to complete by August 10, 2007, a ``comprehensive national
inventory of transportation facilities that are eligible for
assistance'' under the IRR Program. 23 U.S.C. Sec. 202(d)(2)(G). The
comprehensive inventory update was meant by Congress to be more than
just a ``snapshot'' of the current IRR Program inventory. It was meant
to identify and fill in the gaps between the existing incomplete IRR
Program inventory and what the inventory would include if all eligible
IRR routes were included.
Unfortunately, it is my understanding as Chairman of the IRR
Program Coordinating Committee that a snapshot is all that Indian
country and the Congress will get, unless Congress demands that the
agencies conduct a comprehensive inventory update of the IRR Program as
it so plainly directed in SAFETEA-LU.
The inventory assessment is intended to assist the agencies to
identify Tribal transportation facilities and determine the relative
transportation needs among Indian Tribes. Eligible routes, at a
minimum, by law include:
i) routes included in the BIA system inventory receiving
funding since 1992;
ii) routes constructed or reconstructed with funds from the
Highway Trust Fund under the IRR Program since 1983;
iii) routes owned by an Indian Tribe;
iv) community streets or bridges within the exterior boundaries
of Indian reservations, Alaska Native villages, and other
recognized Indian communities (including communities in former
Indian reservations in Oklahoma) in which the majority of
residents are American Indians or Alaska Natives;
v) ``primary access routes'' proposed by Tribal governments,
including roads between villages, roads to landfills, roads to
drinking water sources, roads to natural resources identified
for economic development, and roads that provide access to
intermodal termini, such as airports, harbors, or boat
landings.
In addition, Congress directed in SAFETEA-LU that nothing shall
preclude the Secretary of Transportation from including additional
transportation facilities that are eligible for funding under the IRR
Program ``if such additional facilities are included in the inventory
in a uniform and consistent manner nationally.'' This has not occurred.
b) The BIA and FHWA Must Exercise Leadership
Regrettably, the IRR Program Coordinating Committee has not reached
consensus, and the BIA and FHWA have not adopted, uniform guidelines on
what routes are and are not eligible for inclusion in the IRR Program
inventory for purposes of determining funding under the IRR Program
formula (Tribal Transportation Allocation Methodology). How can the IRR
Program Coordinating Committee, BIA, FHWA, or Congress accurately
assess the fairness of the current formula for the IRR Program if the
BIA and FHWA have not set clear guidelines on the types of routes that
may be added to Tribal inventories or the process which Indian Tribes
and BIA Regions must follow to place such routes into the RIFDS?
The impasse over establishing a ``bright line'' policy as to the
types of routes eligible for inclusion in the IRR Program inventory,
and the minimum data that Indian Tribes must include with every route
submitted to the BIA for inclusion in their IRR Program inventory, has
caused considerable delays, uncertainty, and frustration in the
distribution of IRR Program funds. Challenges and appeals over the
BIA's failure to include routes in the IRR Program inventory delay the
BIA's full distribution of IRR Program funds, again contrary to
Congress' 30-day payment mandate.
When the IRR Program Coordinating Committee cannot reach consensus
on fair, reasonable and equitable rules for the inclusion of routes in
the IRR Program inventory, it must fall to the BIA and FHWA to exercise
leadership. The Coordinating Committee is an advisory committee to
these agencies. I hope that the agencies will always accept the
Committee's recommendations. Ultimately, however, it is for the BIA and
FHWA to interpret and implement the law. But they must do so in a
timely manner. The IRR Program must benefit all Indian Tribes,
regardless of size. Every Indian Tribe has transportation needs. Large
Indian Tribes have large road inventories and require the funds to
maintain them, and replace them when they are worn. Smaller Tribes
require funds to plan, design, build, and maintain their priority
routes.
So long as the comprehensive update of the IRR Program, and the
identification of eligible routes that are not yet included in the
inventory, is incomplete, these additional routes are invisible to the
IRR Program, to policy makers and appropriators. Inventory is a key
component to funding and these agencies have a special obligation to
Indian Tribes to identify all eligible routes and help Indian Tribes
update their Tribal inventories.
c) Agencies Report to Congress
SAFETEA-LU requires the agencies to submit a report to Congress on
the national Tribal transportation inventory not later than November
10, 2007, 90 days after the inventory is completed in August of this
year. Mr. Chairman, we want what Congress mandated in SAFETEA-LU: a
``comprehensive national inventory of transportation facilities that
are eligible for assistance'' under the IRR Program. By November 2007,
more than 2 years after SAFETEA-LU was enacted, if all the BIA and FHWA
report to Congress is that the IRR Program inventory is incomplete, and
does not include all routes that are eligible under SAFETEA-LU for
inclusion in the IRR Program inventory, the agencies will not be
telling Congress or Indian Tribes anything new.
We ask that this Committee direct the BIA and FWHA to provide
Congress and the Nation's Indian Tribes with a comprehensive review and
report on the total IRR Program inventory of transportation facilities
eligible for inclusion and funding under the IRR Program as directed in
SAFETEA-LU.
7. Congress Should Encourage the President to Nominate a Candidate to
Fill the Position of Deputy Assistant Secretary for Tribal
Government Affairs within the Department of Transportation
Tribes worked very hard during the consideration of SAFETEA-LU to
develop consensus positions to advocate before the Administration and
Congress. This Committee knows how difficult it is to legislate in the
field of Indian law and obtain a unified position from 564 sovereign
Tribal governments. Our strategy was quite successful as is reflected
in the many positive provisions contained in SAFETEA-LU. However, this
success will not be realized if the Administration does not act on the
legislative mandates.
For this reason, we are disappointed that the Administration has so
far failed to nominate anyone to fill the position of Deputy Assistant
Secretary for Tribal Government Affairs, as required by SAFETEA-LU.
Tribes advocated, during Congress' consideration of SAFETEA-LU, for the
creation of this position at the Assistant Secretarial level so that
Tribal transportation issues would be more prominent before the
Department and within the Office of the Secretary.
As it states in SAFETEA-LU: ``in accordance with Federal policies
promoting Indian self determination, the Department of Transportation
shall have, within the office of the Secretary a Deputy Assistant
Secretary for Tribal Government Affairs appointed by the President to
plan, coordinate, and implement the Department of Transportation policy
and programs serving Indian Tribes and Tribal organizations and to
coordinate Tribal transportation programs and activities in all offices
and administrations of the Department . . . .'' 49 U.S.C.
Sec. 102(f)(1), as amended.
If a Deputy Assistant Secretary at DOT had been in place, perhaps
the Department would have developed, in consultation with Indian
Tribes, Tribal eligibility for the Scenic Byways program as authorized
under SAFETEA-LU, and concluded that Indian Tribes are eligible sub-
recipients for the State-administered Safe Routes to School Program,
without requiring the intervention of Indian Tribes and the Congress,
to overturn the Department's initial position.
We commend FHWA Administrator Rick Capka, former Associate
Administrator Arthur Hamilton, and Office of Transit Programs Director
Mary Martha Churchman, and their staffs, for their support of and
advocacy for the IRR Program, Tribal Transit Grants, and Tribal
transportation generally. The IRR Program is a small component of the
Federal Highway Administration's Federal Lands Highways budget and
jurisdiction. There is no substitute for an Assistant Secretary with
primary responsibility for ensuring that all agencies within DOT
coordinate their actions in a manner that best serves Indian country
and the overall goals of the Department.
We ask the Committee to urge the Administration to fill the Deputy
Assistant Secretary position at DOT at the earliest possible date. This
appointment will help achieve the goals of Congress, the
Administration, and Indian Tribes to improve the delivery of Tribal
transportation programs at all levels within the Department of
Transportation.
8. Increase the Number of DOT Programs Which Indian Tribes May
Participate in as Direct Recipients
Indian Tribes have demonstrated that they possess the capacity to
deliver successful transportation programs despite the many obstacles
that stand in our way. We are separate sovereign governments and not
subdivisions of the States. While Indian Tribes may be eligible sub-
recipients of some State-administered programs financed by the U.S.
Department of Transportation, such as the Safe Routes to Schools, High
Risk Rural Roads Program, and Highways for Life, Indian Tribes do not
typically receive their fair share of these program funds.
I hope my testimony today, and the statistics that I have
referenced, drive home to you how great the transportation needs are in
Indian country. A little assistance will go a long way because our
statistics of traffic safety accidents and fatalities are so high.
Congress should therefore increase the number of Department of
Transportation programs that Indian Tribes may apply for directly
rather than as sub-recipients through the States. In many instances,
the forms of State contracts are too cumbersome, or are simply
objectionable to Tribes, requiring Tribes to waive their sovereign
immunity from suit, or appear in State courts. The result is that
Tribes often do not even apply for these much needed grants.
9. Establish a Federal Lands Highways Safety Program for Indian
Reservation Roads; Set Aside for the High Risk Rural Road
Program; and Increase Funding for FTA's Tribal Transit Grant
Program to $50 Million Annually
Under SAFETEA-LU, for FY 2008, Congress authorized $1.275 billion
for the highway safety improvement program under section 148 of title
23 (High Risk Rural Road Program); and authorized nearly $700 million
under Title II of SAFETEA-LU for the Highway Safety Programs of chapter
4 of title 23. These funds include: for highway safety programs ($225
million); highway safety research and development ($107 million);
occupant protection incentive grants ($25 million); safety belt
performance grants ($124.5 million); State traffic safety information
system improvements ($34.5 million); alcohol-impaired driving
countermeasures incentive ($131 million); national driver register ($4
million); high visibility enforcement program ($29 million);
motorcyclist safety ($6 million); and child safety and child booster
seat safety incentive grants ($6 million).
SAFETEA-LU amended section 402(c) of title 23 to increase the set
aside of appropriations for Highway Safety Programs to the Secretary of
the Interior from \3/4\ of 1 percent to 2 percent annually, but this
increase still provides less than $5 million dollars to be divided
among all 564 federally recognized Tribes.
We must build on this success and establish an Indian Reservation
Roads Safety Program for the Federal Lands Highways office within the
Department of Transportation. In 2004 and 2005, Indian Tribes sought to
establish a set aside for the IRR Program for the High Risk Rural Road
Program during the Congress' consideration of SAFETEA-LU as well as a
Federal Lands Highways safety program funded at $40 million annually.
We currently recommend that Congress create a 2 percent set aside for
the IRR Program for the High Risk Rural Roads Program, and create a
Highway Safety Program for Indian reservation roads within the Federal
Lands Highways with an appropriation amount of $50 million annually to
dramatically reduce the incidence of death and injury on America's
Indian reservation roads.
If Congress develops Tribal set asides for Department of
Transportation safety programs, it would do so much to combat
behavioral and safety issues that contribute to the high rates of death
and injury on Indian reservation roads.
The Tribal Transit Program is a huge success and demonstrates the
unmet need for more transit funding of Tribal transit programs. Our
Reservation operates a transit program and it benefits so many of our
members, including students attending Sitting Bull College. As noted
above, nearly 100 Tribes submitted applications to FTA in the first
year FTA announced the program. FTA was able to fund over 60 of the
applicants. Due to the demonstrated high demand and proven results,
Congress should increase the authorization for the Tribal Transit Grant
Program to $50 million annually.
10. Increase Funding to the Successful Tribal Transportation Assistance
Programs (TTAPs) to at least $2.5 Million Annually to Increase
Awareness in Indian Country of ``Best Practices'' in
Transportation Planning, Design, Construction, Maintenance, and
Highway Safety Measures
Tribal Technical Assistance Programs (TTAPs) are the real unsung
heroes in Tribal transportation policy. They work to educate Tribal
officials on transportation issues, increase the technical capacity of
Tribal governments in the transportation arena, and provide training in
safety and equipment operation and maintenance. As a result of their
efforts, Tribal governments are playing a greater, and more informed,
role in the delivery of transportation services to their communities.
The TTAPs are 15 years old, having been created in the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA) and is funded in
part through FHWA's Office of Professional and Corporate Development
(OPCD), and with IRR Program funds. Seven TTAPs assist Tribes
throughout the country. Under SAFTEA-LU, the BIA is authorized to fund
the TTAPs at $1.0 million annually. I recommend that Congress increase
funding to the TTAPs to $2.5 million annually so that they may expand
their valuable services to Indian Tribes.
11. Promote the Use of Flexible Financing Arrangements in Standard ISDA
Contracts and Agreements
I have personally witnessed the benefits to be gained through the
use of flexible financing techniques. Flexible financing or advance
construction agreements allow Tribes to use a portion of their IRR
Program funds to repay government bonds or commercial lenders the
interest and principal for loans advanced to the Tribe to finance an
IRR Program-eligible project. To be eligible, the project must be
included on an FHWA-approved Transportation Improvement Program (TIP).
Innovative financing is different than pay-as-you-go (paygo)
arrangements in that an entire construction project may be bid out as a
single project which creates economies of scale, reduces mobilization
costs, and minimizes the negative effects that construction inflation
would otherwise have on available funds that are saved by the Tribe
over time.
The Standing Rock Sioux Tribe financed a $26.5 million
reconstruction of community streets throughout our reservation in 2003-
2006 using an advance construction agreement we negotiated with the BIA
and FHWA. This project was a resounding success. We are especially
disappointed therefore that the Assistant Secretary--Indian Affairs
informed the IRR Program Coordinating Committee in April 2007 that the
BIA will not recognize advance construction authority through straight-
forward Indian Self-Determination Act (ISDA) contracts and Self-
Governance agreements. Instead, the BIA will only enter into an advance
construction arrangement with a Tribe through negotiation of a separate
agreement, under authority of 23 U.S.C. Sec. 204, which is not included
in or referenced by the ISDA contract or agreement.
The Assistant Secretary's letter does not explain the BIA's
rationale as to why the ISDA contract, the contract document which
Tribal governments are most familiar with and accustomed to negotiating
with the BIA for over 30 years, is not an acceptable agreement for the
use of flexible financing arrangements by Tribes. I enclose the
Assistant Secretary's April 27, 2007, letter and the Coordinating
Committee's original letter of February 14, 2007.
The BIA's decision will likely result in fewer Tribes using advance
construction agreements in the future to finance eligible road
construction projects. This decision will also make it harder for
Tribes to obtain short term bridge loans to complete projects at the
end of a Fiscal Year. This will mean unnecessary project closures and
costly demobilizations and remobilizations. To mandate that Indian
Tribes must negotiate a separate advance construction agreement is not
sensible and raises the cost of doing business in Indian country. As
the Assistant Secretary concedes in his letter, the ``Federal
Government does not act as a surety, guarantor, or project financier or
request approval of a loan from any lending institution'' under these
agreements, so there is no reason to require the Tribes to enter into a
separate entirely superfluous agreement, when the Self-Determination
agreement can serve this same purpose.
By contrast, FHWA, in negotiating its IRR Program Agreement with
five Indian Tribes in 2006, allowed the IRR Program Agreement to
reference the IRR Program regulations' flexible financing provisions
(25 C.F.R. 170.300 et seq.), and permit the Tribes, at their option, to
direct a portion of their IRR Program funds to be paid from FHWA
directly to the bond trustee or lending institution financing an
eligible project under the IRR Program. This more sensible approach
lowers transaction costs and provides incentives to lenders to do
business with Tribal governments on transportation projects.
We encourage the Committee to either counsel the Department of the
Interior to retract its unwarranted decision or clarify in future
legislation that advance construction agreements may be included in the
standard Title I ISDA contract and Title IV Self-Governance agreement.
12. Implement Right-of-Way Reform in Indian Country to Facilitate
Reconstruction of Existing Roads and the Design and
Construction of New Roads
Reservation areas are often a checkerboard of fee, allotted, and
Tribal trust lands. Therefore, it is often time-consuming and expensive
for Tribes and the Federal Government to obtain all ofthe necessary and
appropriate rights-of-way before beginning construction or renovation
of roadways, bridges, and other transportation infrastructure.
The BIA is responsible for maintaining records of rights-of-way in
Indian Country. Unfortunately, BIA right-of-way records management is
in a terrible state. IRR projects are often delayed by months--or even
years--because the BIA realty officers cannot locate valid right-of-way
records. Tribes are using their IRR Program funds, the only funds the
BIA claims are available, to cure inaccurate or lost rights-of-way.
Tribal and Federal funds are thus often wasted in re-acquiring valid
rights-of-way simply because adequate BIA records have not been kept.
The Interior Department should undertake a major new initiative to
organize, update, and computerize its BIA right-of-way records. It
should make these records available to Tribal governments in an easy-
to-access format such as a GIS/GPS mapping system. The Interior
Department should also be more aware and protective of Tribal
jurisdictional interests in the right-of-way acquisition and transfer
process, in light of the U.S. Supreme Court's adverse right-of-way
ruling in Strate v. A-1 Contractors, 520 U.S. 438 (1997) and subsequent
cases.
The Federal Government should also work closely with Tribes to
implement a proactive program of ``corridor management.'' Through
``corridor management,'' Tribally preferred corridors for
transportation and other infrastructural elements--such as for
electrical lines, water lines, and others--can be planned well in
advance. In some instances, the easements for these corridors may be
obtained in advance. Corridor management requires Tribal governments to
think proactively about how they envision future development to occur
on their reservations. Through corridor management, rights-of-way for
all inter-related infrastructural development projects can be obtained
in a unified manner, speeding up design and construction once a
specific project is authorized and funded.
The Federal Government should be an active and supportive partner
in providing technical assistance to Tribes who wish to apply the
principles of corridor management to their transportation programs and
to general reservation development.
VI. Conclusion
Indian Tribes are coming into their own in the transportation
field. Tribal governments are focusing on long-range transportation
planning, assuming the Interior Department's duties for the IRR
Program, partnering with States and county governments on mutually
beneficial construction projects, and looking at innovative ways to
finance the development of infrastructure on their reservations. These
trends should be applauded and I wish to thank the Members of this
Committee for the many beneficial legislative changes that you worked
to include in SAFETEA-LU. Yet even with these successes, many
challenges still remain. Congress and the Administration must recognize
that if Indian Tribes are to overcome these challenges, Tribal
governments must be given the resources to succeed.
I hope that as a result of this hearing Tribal governments, Tribal
Technical Assistance Programs (TTAPs), and State DOTs, can work in
greater concert with the BIA and Department of Transportation to
improve transportation infrastructure in Indian country--from building
and enhancing Tribal transportation departments to building and
maintaining safer roads in Indian country.
Tribal communities will not suffer the traffic fatalities and
injuries at the rates we are now seeing if we can interact on a more
equal footing with States, to plan, design, build and maintain our
inventory of roads, and implement traffic safety measures which States
have shown to be successful in promoting highway safety. Pockets of
best practices exist within the agencies which demonstrate that the
manner by which Indian Tribes receive Federal funds and operate Federal
transportation can be improved for the better. Tribes need the help of
Congress to makes these best practices the rule, rather than the
exception.
Tribal governments, Federal agencies, and Congress need to open a
new dialogue where old habits and old ways of doing business are
discarded for more efficient practices. We are making progress in
Tribal transportation and I encourage this Committee and the Congress
to work in partnership with Indian Tribal governments. Indian Tribes
are ready to do our share to improve the safety of our communities for
ourselves and our children's future.
Thank you for giving me the opportunity to present testimony
regarding Tribal transportation issues on behalf of the Standing Rock
Sioux Tribe.
Attachments
Indian Reservation Roads Coordinating Committee
Albuquerque, NM, Meeting--February 14, 2007
Hon. James Cason,
Associate Deputy Secretary,
U.S. Department of the Interior,
Washington, DC.
Dear Associate Deputy Secretary Cason
Thank you for meeting with the Tribal members of the IRR Program
Coordinating Committee on January 25, 2007. We value the productive
discussions we had with you, Mr. Ragsdale, Mr. Gidner, and your staff
concerning the state of the IRR Program and our recommendations to
improve it.
We write to follow up on the issue of flexible financing. It is an
important issue for two reasons. First, flexible financing/advance
construction techniques are tools which Indian tribes have used
successfully to raise private capital to finance much needed road
construction projects that they could not otherwise afford to construct
using the traditional pay-as-you-go finance method. Second, flexible
financing is an allowable activity under Title 23 United States Code
(23 U.S.C. Sec. 204(b)) and the IRR Program regulations (25 C.F.R. Part
170.300 et seq.).
Since our meeting of January 25th, we learned that an Attorney
Advisor in the Minneapolis Field Solicitor's Office issued a memorandum
to the Great Plains Region Branch of Roads Engineer on December 21,
2006, in which the Regional engineer was informed that the Solicitor's
Office in Washington, D.C. has advised the BIA that no further flexible
financing agreements are to be entered into between the BIA and Indian
tribes, whether under authority of the Indian Self-Determination Act,
P.L. 93-638 or under authority of 23 U.S.C. Sec. 204. The Attorney
Advisor advised the Great Plains Region Branch of Roads Engineer that
until further notice, tribes interested in flexible financing
provisions should seek agreements with the Federal Highway
Administration (FHWA).
The BIA entered into an Advance Construction Agreement with the
Standing Rock Sioux Tribe in 2004 for a $26.5 million reconstruction of
community streets. This agreement was approved by Interior Department's
Office of the Solicitor. The project was an overwhelming success. In
2006, FHWA signed five agreements with Indian tribes under authority of
SAFETEA-LU and ``in accordance with the Indian Self-Determination
Act.'' All of these agreements authorize the use of advance
construction financing at the discretion of the tribe.
The Attorney Advisor's memorandum, which we enclose with this
letter, offers no explanation why existing authorities, under 23 U.S.C.
Sec. 204 or 25 C.F.R. Sec. 170.300 et seq., are not adequate to support
the incorporation of advance construction provisions in an appropriate
agreement.
Flexible financing techniques: (1) are authorized by Federal law
and regulations, (2) have been approved by the Department in prior
agreements, (3) have a proven track record of success, (4) provide
jobs, spur economic development and make reservation roads safer, (5)
bring private financing to Indian country, and (6) advance Tribal and
Federal goals to address the horrendous state of reservation
infrastructure in Indian country.
We do not want the Solicitor's Office to issue an opinion that
would deprive Indian tribes of a financing tool available to every
State and which is authorized by law. We do, however, ask that you
ascertain the Department's objections to this financing technique and
provide the Committee with a reasoned and understandable explanation of
why the Solicitor's Office has put a stop to this authorized activity.
We look forward to your earliest possible response to this matter.
Sincerely,
Pete Red Tomahawk, Chair; Royce Gchachu, Vice-Chair.
cc: Mr. Patrick Ragsdale; Mr. Jerry Gidner; Mr. LeRoy Gishi;
Office of the Solicitor; Mr. Robert Sparrow; and Vivian
Philbin, Esq.
______
______
U.S. Department of the Interior, Office of the Secretary
Washington, DC, April 27, 2007
Mr. Matthew S. Jaffe,
Sonoksy, Chambers, Sachse, Endreson & Perry,
Washington, DC.
Dear Mr. Jaffe:
Thank you for faxing me a copy of the letter of February 16, 2007,
to Associate Deputy Secretary James Cason, from Chairman Pete Red
Tomahawk and Vice Chairman Royce Gchachu, Indian Reservation Roads
Program Coordinating Committee (``the committee'') regarding their
concern with flexible financing agreements.
We share the committee's view that flexible financing affords
tribes advantages in meeting their transportation infrastructure needs.
Our participation to date has been in developing advance construction
agreements and project agreements designed to help foster this capacity
building for tribes. An advance construction agreement is specifically
designed to allow a tribe to utilize a portion of its IRR program funds
to repay commercial financing instruments by acknowledging the project,
and agreeing to transfer the negotiated amount into the tribe's special
bank account and include the project in the tribe's IRR Transportation
Improvement Program (TIP). The Federal Government does not act as a
surety, guarantor, or project financier or request approval of a loan
from any lending institution. As of this date, tribes have only
utilized flexible or innovative financing to advance approved projects.
The use of this flexible financing methodology has been strictly
between the tribe and the lender and has not involved the BIA.
The lending institutions may have a sense of comfort in knowing
that advance construction agreements are in place, but the agreements
offer nothing more than an acknowledgement of available IRR program
funding that may be used by the tribe to pay either principal or
interest for any lending agreements for the projects.
The authority granted under 23 U.S.C. Sec. 204 is that the
Secretary may enter into construction contracts and other appropriate
contracts (other than P.L. 93-638 contracts and agreements) with an
Indian tribe. This section authorizes the Secretary to enter into the
advance construction agreements based on the criteria stated above.
We will continue to support tribes in advancing projects and
improving Indian Reservation Roads, regardless of the road owner. After
review by both the BIA and the Solicitor's Office, we have determined
to continue to allow advance construction agreements and project
agreements, where applicable, based on the following criteria:
1. That all advance construction agreements will be reviewed
and approved by the Office of the Solicitor before execution.
2. That all project agreements, when BIA roads are specifically
identified to be advance constructed, will be reviewed and
approved by the Office of the Solicitor before execution.
3. That all (advance construction and project) agreements will
be entered into as separate agreements based on 23 U.S.C.
Sec. 204(b)(2)(B) and not included in or referenced in P.L. 93-
638 contracts or agreements.
Thank you for your interest and support of the Indian Reservation
Roads program. If you have additional questions, please contact LeRoy
Gishi, Division of Transportation at (202) 513-7711 or Sabrina
McCarthy, Office of Solicitor at (202) 219-2139.
Sincerely,
Carl J. Artman,
Assistant Secretary--Indian Affairs.
The Chairman. Mr. Red Tomahawk, thank you again for
appearing, and thanks for your many decades of work on these
issues.
Next, we will hear from Mr. Jim Garrigan. He is
Transportation Planner for the Red Lake Band of Chippewa
Indians in Red Lake, Minnesota. Mr. Garrigan, welcome, and you
may proceed.
STATEMENT OF JAMES GARRIGAN, TRANSPORTATION PLANNER, RED LAKE
BAND OF CHIPPEWA INDIANS
Mr. Garrigan. Thank you.
Good morning, Mr. Chairman, Vice Chair Murkowski, and
Members of this Committee. My name is James Garrigan,
Transportation Planner for the Red Lake Band of Chippewa
Indians.
On behalf of Chairman Jourdain, the Red Lake Tribal
Council, and the people they represent, I thank you for the
opportunity to provide testimony concerning transportation
issues in Indian Country.
The Red Lake Band of Chippewa Indians has long been at the
forefront in efforts to reform Federal transportation programs
to better serve the needs of Indian reservations and
communities. Although great strides have been made in improving
the IRR program under TEA-21 and SAFETEA-LU, several issues
have arisen that are negatively affecting the full
implementation of the provisions of these Acts as intended by
Congress.
One of the main issues of concern is the IRR inventory
process that is threatening to undo some of the significant
gains Indian tribes have made through TEA-21 and SAFETEA-LU.
Under the negotiated rulemaking process required by TEA-21,
Indian tribes and Federal agencies negotiated new rules, as
contained in 25 CFR 170, by which the IRR program would
operate. These rules provide the process by which tribes and
the BIA update the inventory of roads and bridges on the IRR
system.
The negotiated rulemaking process took four and a half
years to complete, and it took the BIA another two and a half
years to publish the final rule. Upon publication of the final
rule, we were dismayed to discover that the BIA unilaterally
left out or changed critical language affecting the inventory
that was included in the proposed rule.
The BIA has never explained why it decided without
consultation or involvement of the tribes to remove or change
regulatory provisions proposed by the tribal negotiating team
that would improve the integrity of the inventory system. It is
our understanding that the Indian Reservation Roads program was
established by Congress primarily to fund the construction of
roads and bridges on Indian reservations due to the fact that
these roads and bridges are considered Federal roads, and it is
the Federal Government's responsibility to construct and
maintain these facilities on Indian reservations.
We believe that the IRR program should primarily address
the construction and improvement needs of roads that are
located within or provide primary access to Indian lands and
that are not eligible for other Federal, State and county
funding sources.
While Congress and the Administration have substantially
increased the IRR funding, the number of roads that are
eligible for funding has been increased at the same time. Some
of these roads are eligible for substantial sources of other
funding. As a result, the roads for which the only source of
funding is IRR funding are receiving a smaller slice of the
bigger funding pie.
The unilateral BIA decision on the final rule favors those
tribes that are located near urban areas, where transportation
needs are the shared responsibility of tribes and their
neighboring governments, and where the Indians are
overwhelmingly outnumbered by non-Indian users of these roads.
The BIA system on reservation roads has a documented
construction backlog of $13 billion. In the face of that need,
the BIA's unilateral final rule has resulted in siphoning off
scarce IRR dollars from areas where the greatest need exists.
A couple of other issues that I would like to touch on that
were touched on previously, I would just like to expand on
those, Mr. Chairman. That is the need for the tribal
transportation facility inventory that is truly comprehensive.
The Federal Highway Administration has failed to meet the
intent of section 1119(f) of SAFETEA-LU regarding the conduct
of a comprehensive national tribal transportation facility
inventory. Despite the mandatory nature of this statutory
requirement, FHWA has decided to conduct merely a
``windshield'' survey sampling of IRR roads. This approach and
methodology falls far short of the statutory requirement. We
urge the Congress to insist that FHWA complete the
comprehensive inventory of the IRR system as intended. This may
require an extension of the time limit stipulated in SAFETEA-
LU.
One other issue that has generated a lot of discussion here
this morning is road maintenance. Protection of the investment
in any type of infrastructure requires proper maintenance.
Historically, the IRR maintenance system has been chronically
underfunded, which has caused safety hazards and premature
failure of many roads on the IRR system. Roads usually have 20
year design life, but because of inadequate maintenance, many
of the IRR system roads last only about half their design life
and have to be reconstructed much sooner.
The BIA is responsible for maintaining the IRR system.
However, the funding BIA provides is approximately 25 percent
of what is required to properly maintain the system. The IRR
maintenance situation has become even more critical with the
increase of IRR funding through SAFETEA-LU. While IRR
construction funding is increasing, BIA road maintenance is
declining.
The BIA receives approximately $25 million per year as part
of its lump sum appropriations for IRR road maintenance
activities. BIA now estimates that $120 million per year is
actually what is needed to properly maintain roads on the BIA
system. At present levels, the BIA spends less than $500 in
maintenance funding per mile. Most State transportation
departments spend approximately $4,000 to $5,000 per mile each
year on maintenance of State roads.
Of course, States receive highway taxes based upon the sale
of gasoline within the State. While users of the tribal roads
pay these same State highway fuel taxes, tribal roads receive
little or no benefit from State fuel taxes. Tribes are unable
to impose gas taxes in addition to or in lieu of those imposed
by surrounding States.
The only practical solution we see for this problem is that
since roads on the BIA system are considered Federal roads, the
BIA road maintenance program should be provided extra funds out
of the Highway Trust Fund as are other Federal Lands Highway
program roads.
Mr. Chairman, we, too, have some success stories, and I
have outlined those in my written testimony, so I won't touch
on those now. Like I say, they are outlined in my written
testimony.
In conclusion and on behalf of the Red Lake Band, I thank
the Committee for its attention to and support of the Indian
Reservation Roads program. We have attempted to provide the
Committee with a few examples of what tribes can do for
themselves when Federal law is reformed to give us the
opportunity and authority.
We thank this Committee for its support of our endeavors
over the years to become self-sufficient and self-governing. We
look forward to working closely with the Committee in the
future to further the cause of tribal self-governance and self-
sufficiency, and the preservation of government-to-government
and sacred trust responsibilities owed to us.
Thank you for inviting the Red Lake Band to present this
testimony, and if we can answer any questions now or sometime
in the future, please do not hesitate to ask.
Thank you.
[The prepared statement of Mr. Garrigan follows:]
Prepared Statement of James Garrigan, Transportation Planner, Red Lake
Band of Chippewa Indians
Introduction
Good morning, Mr. Chairman and Members of this Committee. My name
is James Garrigan, Transportation Planner for the Red Lake Band of
Chippewa Indians. I am also a member of the Indian Reservation Roads
Coordinating Committee formed by various Indian Tribes to help shape
Federal policy and practice in this area.
On behalf of our Chairman, the Honorable Floyd Jourdain, and the
Tribal Council of the Red Lake Band of Chippewa Indians, I wish to
convey our sadness at the loss of Senator Thomas last month and our
sympathy to his family and colleagues here. He was a great friend of
Indian Tribes and will be missed.
On behalf of Chairman Jourdain, the Red Lake Tribal Council, and
the people they represent who reside on the Red Lake Indian Reservation
in Northern Minnesota, I thank you for this opportunity to provide
testimony concerning Transportation Issues in Indian Country.
The Federal Lands Highway Program and the Indian Reservation Roads
Program represents for us a major avenue through which the U.S.
Government fulfills its trust responsibilities and honors its
obligations to the Red Lake Band and to other Indian Tribes. This
program is vital to the well being of all Native people living on or
near Indian lands throughout the United States. Because of its great
importance, reform of the Indian Reservation Roads Program has become a
top legislative priority for many Indian Tribes.
Background on the Red Lake Indian Reservation
Compared to other Tribes, Red Lake is a medium-sized Tribe with
more than 9,500 enrolled members, most whom live on our Reservation.
The Red Lake Indian Reservation is located in a rural area within the
boundaries of the State of Minnesota. Our Reservation has over 840,000
acres of tribal land and water held in trust for our Tribe by the
United States. While over time it has been diminished from its original
15 million acres, our Reservation has never been broken apart or
allotted to individuals and lost to non-Indians. Nor has our
Reservation ever been subjected to the criminal or civil jurisdiction
of the State of Minnesota. Consequently, our Tribal Government has a
large land area over which our Tribe exercises full and exclusive
governmental authority and control in conjunction with the United
States. At the same time, due in part to our location far from centers
of population and commerce, we have few jobs available on our
Reservation. While the unemployment rate in Minnesota is only at 4
percent, unemployment on our Reservation remains at an outrageously
high level of 74 percent. The lack of adequate transportation
facilities, communications, and other necessary infrastructure
continues to significantly impair economic development and job
opportunities.
The IRR Program and the Indian Self-Determination and Education
Assistance Act
The Red Lake Band of Chippewa has long been at the forefront in
efforts to reform Federal transportation programs to better serve the
needs of Indian reservations and communities. Although great strides
have been made in improving the IRR program under TEA-21 and SAFETEA-
LU, several issues have arisen that that are negatively affecting the
full implementation of the provisions of these Acts as intended by
Congress.
Nine years ago Red Lake led tribal lobbying efforts to shape TEA-21
to allow Indian Tribes greater opportunity to assume and administer the
Indian Reservation Roads (IRR) Program pursuant to the Indian Self-
Determination and Education Assistance Act (ISDEAA or P.L. 93-638). The
tribal TEA-21 reform effort aimed at removing many obstacles that
hampered past attempts by Tribes to administer the IRR Program under
P.L. 93-638 Self-Determination or Self-Governance Agreements. In
response, Congress added express language to TEA-21 authorizing Tribes
to assume all roads programs, functions, services and activities under
P.L. 93-638 agreements. But this congressional intent was thwarted by a
Bureau of Indian Affairs (BIA) engineering bureaucracy reluctant to
transfer operational power and responsibility to Tribes. I know this
for a fact. In a previous life, I worked within the BIA bureaucracy. I
left it to go work for my Tribe. There was no good reason why my Tribe
and tribal staff could not do what the BIA and BIA staff had done. But
trying to pull that money out of the BIA bureaucracy was an exercise in
futility for years.
The Wasteful ``Six Percent'' Problem
For years, the BIA leadership persuaded congressional appropriators
to add a rider to annual funding bills that reserved 6 percent of the
Indian roads/bridges appropriations for BIA administrative and
programmatic expenses. Increasingly, more and more Tribes like Red Lake
argued that the BIA activities being paid for with these 6 percent
funds were duplicative and unnecessary, and were siphoning off dollars
to support a Federal bureaucracy rather than to construct roads
critically needed on Indian reservations.
When Congress drafted SAFETEA-LU, it adopted most of the provisions
sought by tribal leaders. But unknown to the Tribes, the BIA quietly
persuaded the Senate to add in Section 1119(e) a new provision,
codified at 23 U.S.C. 202(d)(2)(F)(i), which allocates $20 million for
FY 2006, $22 million for FY 2007, $24.5 million for FY 2008, and $27
million for FY 2009 to the BIA ``for program management and oversight
and project-related administrative expenses.'' This is nearly 6 percent
of the Indian roads funds. The BIA cannot justify continuing to consume
these funds in an era of self-determination and self-governance. The
BIA workload should be going down, not rising. We ask that this
Committee work to repeal that subparagraph (F)(i) as soon as possible.
Red Lake has steadily bargained year after year, successfully
taking more and more of its 6 percent money back from the BIA. But Red
Lake is only one of a handful of Indian Tribes who have succeeded in
obtaining nearly 100 percent of their funding from the BIA. Most other
Tribes continue to see their roads and bridges project and program
funding reduced by 6 percent or more to fund the BIA bureaucracy and
unnecessarily duplicated services. This carte blanche funding guarantee
for the BIA bureaucracy should be stripped out of the law and forever
banned. It serves no public policy purpose and cannot be justified on
grounds of anything other than the status quo and avoiding necessary
reorganization and restructuring of the BIA bureaucracy.
Need to Move the Money
Red Lake and other Tribes who initially assumed the IRR program
under Self-Governance worked closely with Interior's Office of Self-
Governance to design a financial system that provided Tribes with an
efficient way to track their revenues and expenditures of IRR funds.
This system worked exceptionally well. Tribes entered and tracked
expenditures, and were able to efficiently prepare financial reports in
real time on a project by project basis. This system gave both tribal
and Federal officials useful monitoring and management information.
Inexplicably, the BIA 2 years ago deemed this system unacceptable. It
directed the OSG to stop using it and the BIA then reassumed all
financial reporting responsibilities through its Federal Finance System
(FFS). Since then Tribes no longer have the same degree of access to
the roads finance system nor do they receive regular financial reports.
Indian Reservation Roads Inventory and Its Impact on Funding
Under the negotiated rulemaking process required by TEA-21, Indian
Tribes and the Federal agencies negotiated new rules (25 CFR 170) by
which the IRR program would operate. These rules provide the process by
which Tribes and the BIA update the inventory of roads and bridges on
the IRR system. The negotiated rulemaking process took 4\1/2\ years to
complete and it took the BIA another 2\1/2\ years to publish a final
rule. Upon publication of the final rule, we were dismayed to discover
that the BIA unilaterally left out or changed critical language
affecting the inventory that was included in the proposed rule. The BIA
has never explained why it decided, without consultation or involvement
of the Tribes, to remove or change regulatory provisions proposed by
the tribal negotiation team that would improve the integrity of the
inventory system.
The final rules allow Tribes to include State and County roads in
their inventory if the routes are located within or provide primary
access to Reservations or Indian lands. The proposed rules negotiated
by Tribes likewise allowed these routes to be included in the
inventory, but did not include these routes in the cost to improve
calculations. The proposed rule asked the question--``Which Roads Are
Included in the Cost to Improve Calculations?'' The answer was very
specific--``Existing or proposed roads in the BIA system which are
considered to have a construction need by Indian tribes are included in
the cost to improve calculations. Tribes must adhere to certain
guidelines in the selection of those roads. Those roads must: (1.) be
on the Indian Reservation Road system; (2.) not belong to or be the
responsibility of other governments (i.e. States or counties) . . ..''
BIA removed this language from the final rule and the BIA is now
allowing Tribes to include Interstate Highways, National Highway System
roads, State and County roads that are in the inventory to generate
tribal shares of IRR funding at the same cost to improve rates that
fund roads that are the sole responsibility of the BIA.
It is our understanding that the Indian Reservation Roads Program
was established by Congress primarily to fund the construction of roads
and bridges on Indian reservations due to the fact that these roads and
bridges are considered Federal Roads and it is the Federal Government's
responsibility to construct and maintain these facilities on Indian
reservations. We believe that the IRR program should primarily address
the construction and improvement needs of roads that are located within
or provide primary access to Indian lands and that are not eligible for
other Federal, State, or County funding sources. The final rule makes a
lot more Federal, State and County supported roads eligible for IRR
funding, if an Indian Tribe timely submits the data information
required to place a highway on the IRR inventory system. While Congress
and the Administration have substantially increased IRR funding, the
number of roads that are eligible for funding has been increased at the
same time. Some of these roads are eligible for substantial sources of
other funding. As a result, roads for which the only source of funding
is IRR funding are receiving a smaller slice of the bigger funding pie.
This is compounded by the fact that many Tribes have yet to submit
their expanded inventory data under the final rules; meanwhile, other
Tribes have added their expanded data. The result is that those Tribes
with expanded inventory data realize an increase in their relative
share of IRR roads funding while those Tribes who lag behind in data
entry suffer a drop in funding.
When Congress enacted Section 1115 (k) of P.L. 105-178 (TEA-21), we
believe it intended that non-BIA or non-Tribal roads within or
accessing an Indian reservation were to be included in the Indian
Reservation Road Inventory to generate only part of the funding needed
to improve those roads. Otherwise, the County, State and other Federal
highway budgets would get a windfall. The law is quite specific: `` . .
. [F]unds authorized to be appropriated to carry out the Federal lands
highways program under section 204 may be used to pay the non-Federal
share of the cost of any project that is funded under section 104 and
that provides access to or within Federal or Indian lands.'' 23 U.S.C.
120(k). We believe this means IRR funds can only be used to pay the
non-Federal share on a state or county route is if it is project funded
under 23 U.S.C. 104 and that it is a designated IRR project.
The unilateral BIA decision on the final rule favors those tribes
who are located near urban areas, where transportation needs are the
shared responsibility of tribes and their neighboring governments and
where the Indians are overwhelmingly out-numbered by non-Indian users
of these roads. The BIA system for on reservation roads has a
documented construction backlog of $13 billion. In the face of that
need, the BIA's unilateral final rule has the result of siphoning off
scarce IRR dollars from areas where the greatest need exists.
Rural Tribes, including large land-based Tribes, have expressed
their concerns in writing to the BIA and the IRR Coordinating Committee
regarding changes to the final rule that have altered the intent of the
negotiated rulemaking process. To date, they have received no responses
addressing their concerns.
Need for a Tribal Transportation Facility Inventory That is Truly
``Comprehensive''
The Federal Highway Administration (FHWA) has failed to meet the
intent of Section 1119(f) of SAFETEA-LU regarding the conduct of a
``comprehensive'' National Tribal Transportation Facility Inventory.
Despite the mandatory nature of this statutory requirement, FHWA has
decided to conduct merely a ``windshield survey'' sampling of IRR
roads. This approach and methodology falls far short of the statutory
requirement. We urge the Congress to insist that FHWA complete a
``comprehensive'' inventory of the IRR system as intended.
Road Maintenance
Protection of the investment in any type of infrastructure requires
proper maintenance. Historically, the IRR maintenance system has been
chronically under-funded which has caused safety hazards and premature
failure of many roads on the IRR system. Roads usually have a 20 year
design life but, because of inadequate maintenance, many of the IRR
system roads last only about half of their design life and have to be
reconstructed much sooner. The BIA is responsible for maintaining IRR
system roads; however the funding BIA provides is approximately 25
percent of what is required to properly maintain the system. The IRR
maintenance situation has become even more critical with the increase
of IRR funding through SAFETEA-LU. While IRR construction funding is
increasing, BIA road maintenance funding is declining.
The BIA receives approximately $25 million per year as part of its
lump sum appropriation for IRR road maintenance activities. BIA now
estimates that $120 million per year is actually what is needed to
properly maintain roads on the BIA system. At present levels, the BIA
spends less than $500 in maintenance funding per mile; most state
transportation departments spend approximately $4,000 to $5,000 per
mile each year on maintenance of state roads. Of course, states receive
highway taxes based upon the sale of gasoline within that state. While
users of tribal roads pay these same state highway fuel taxes, tribal
roads receive little or no benefit from state fuel taxes. Tribes are
unable to impose gas taxes in addition to, or in lieu of, those imposed
by the surrounding states.
The only practical solution we see for this problem is that since
the roads on the BIA system are considered Federal roads, the BIA road
maintenance program should be provided extra funds out of the Highway
Trust Fund as are other Federal Lands Highway Programs roads.
Red Lake Decision to Stay With BIA/OSG and Postpone FHWA Agreement
After much deliberation in 2006, Red Lake decided not to contract
directly with Federal Lands Highway Administration for our 2007 roads
program. As you know, one of the signature reforms in SAFETEA-LU was
express authority for Tribes to choose to by-pass the BIA and contract
directly with FHWA. We negotiated with FHWA staff but at the end
decided to defer the decision to a later year because of several
issues. We were unable to negotiate agreement language to our
satisfaction by the time we needed to conclude an agreement for 2007
without causing disruptions to our program. FHWA had only a draft
agreement and appeared to be requiring a uniformity that subjected any
proposed change to broad review with every other tribe actually or
potentially in negotiation. FHWA and BIA had not yet persuaded us the
two Federal agencies had worked out an efficient process by which the
funds due Red Lake would be identified and transferred to Red Lake; we
did not want to risk missing a construction season because of late or
disrupted new funding streams. At the same time, it appeared from
statements made by then Acting Assistant Secretary Jim Cason, that BIA
would move the financial management authority for self-governance roads
programs back under the Office of Self Governance and utilize the
financial management and reporting system that Red Lake and other
Tribes had developed. This system expedites the transfer of funds and
gives us the ability to enter program expenditures by project, making
tracking and reporting expenditures much more easy and useful.
Moreover, the Department of Transportation still has not appointed
the Deputy Assistant Secretary for Tribal Government Affairs that the
SAFETEA-LU Act requires to be established by the President within the
Office of the Secretary. This new office is supposed to ``plan,
coordinate, and implement the Department of Transportation policy and
programs serving Indian tribes and tribal organizations and to
coordinate tribal transportation programs and activities in all offices
and administrations of the Department and to be a participant in any
negotiated rulemaking relating to, or having an impact on, projects,
programs, or funding associated with the tribal transportation
program.'' The Administration's failure to timely fill this FHWA
position has given the Red Lake Band pause about establishing a direct
relationship with that agency. We choose to avoid any possible
entanglement which might disrupt our own administration of our tribal
roads program.
All this is to explain why we did not jump in 2007 to contract
directly with FHWA. Red Lake remains very interested in doing so in the
future.
Tribal Success Stories
Operating the IRR Program under Self-Governance. The Red Lake Band
will soon be entering its tenth year of operating the IRR program under
Title IV of P.L. 93-638, the Self-Governance Act. Self-governance has
provided the Tribe the ability to deal with State agencies on a
government-to-government basis and to leverage funding for projects
that are of mutual interest to both the Tribe and the State. After
years of expensive and strenuous negotiating, we can now say we've
reduced the BIA administrative funding holdback to nearly zero. During
this time, of course, we have been doing all of the work. The Tribe
makes the day to day decisions in all phases of the program including
review and approval of construction plans, specification and estimate
of road construction projects. The Tribe uses its own procurement
guidelines in contracting construction projects from the letting of
bids, negotiating contracts, to close out of projects. Our
relationships with Minnesota Department of Transportation have improved
to the point where the State has enacted special legislation to
contract directly with all Tribes in the State. The Tribe has also been
successful in collaborating with other Federal agencies including
working with the Department of Defense, HUD and the Tribe's own
construction company to complete a $10 million Walking Shield housing
development project which resulted in over 50 homes for tribal members
on our Reservation. Our flexible authority under self-governance
permitted us to apply some of our roads funding to develop roads for
this tribal priority project. Weare thankful that the Congress has
recognized that Tribes are very capable of operating their own programs
for the benefit of their people without the BIA bureaucracy.
Tribal Transit. Many tribal governments place a high priority on
building transit systems that can transport their members who do not
have access to cars to get to work, commerce, recreation, or healthcare
facilities. Thanks to SAFETEA-LU, Tribes recently became eligible to
receive direct grants from the Federal Transit Administration (FTA) for
the operation of public transit programs to serve Indian Reservations.
While the new program is small compared to other transit programs, Red
Lake is grateful to be selected to participate in the first ever direct
grant to Indian Tribes and will continue to work to expand this program
for the benefit of others. Since 2001, the Red Lake Band has been
operating a Public Transit program funded with FTA grants through the
Minnesota Department of Transportation and supplemented with IRR funds.
This program started with one, 20-passenger, transit bus and now has
expanded to four busses. We were recently notified that we were awarded
a direct grant from the FTA in the amount of $198,000. These funds will
be used to replace the IRR program funds that we sorely need to address
the backlog of road construction needs on our Reservation.
Flexible Financing. The Red Lake Band of Chippewa was among the
first Tribes to utilize the authority granted by TEA-21 and 25 CFR
170.300 to secure a short term loan from a commercial lending agency to
complete a high priority roads project on our Reservation. We closed on
the loan last year. That enabled us to complete our project and
immediately meet an urgent need on the Reservation. Because we kept it
a short-term loan, we did not encounter some of the complications other
Tribes experienced. The loan will be paid back with IRR funding from
within the years authorized under SAFETEA-LU.
Conclusion
On behalf of the Red Lake Band, I thank the Committee for its
attention to and support for the Indian reservation roads program. We
have attempted to provide the Committee with a few examples of what
Tribes can do for themselves when Federal law is reformed to give us
the opportunity and authority. We thank this Committee for its support
in our endeavors over the years to become self sufficient and self-
governing and we look forward to working closely with this Committee in
the future to further the cause of tribal self-governance, self-
sufficiency, and the preservation of the government-to-government and
sacred trust relationship owed to us. Thank you for inviting the Red
Lake Band to present this testimony. If we can answer any questions,
now or at some future date, please do not hesitate to ask.
The Chairman. Mr. Garrigan, thank you very much.
Finally, we will hear from Mr. Erin Forrest, who is with
the Hualapai Nation of Peach Springs, Arizona.
Is it Hualapai or Hualapai?
Mr. Forrest. Hualapai.
The Chairman. Hualapai. I apologize.
Mr. Forrest, thank you for joining us, and you may proceed.
STATEMENT OF ERIN FORREST, DIRECTOR OF PUBLIC WORKS, HUALAPAI
NATION
Mr. Forrest. Good morning, Mr. Chairman and Members of the
Committee. My name is Erin Forrest, and I am the Director of
Public Works for the Hualapai Nation. I have held that position
for about 4 years. The job responsibilities are to maintain the
public roads, maintain the public buildings and the public
utilities.
The Hualapai Tribe has about 2,042 enrolled members, of
which about 1,300 live on the reservation. The reservation is
about 1 million acres in size, and is located in northern
Arizona and lies between Flagstaff and Kingman, for those who
are familiar with Arizona. Kingman is the closest center to
provide goods and services to the Hualapai Tribe and lies about
50 miles away.
There are 660 miles of roads to maintain on the
reservation, of which 72 miles are paved; 236 miles are
improved gravel; and 352 miles are considered unimproved. The
Bureau of Indian Affairs had the responsibility of maintaining
those roads until about 15 years ago. The tribe through a self-
determination 638 contract took over the road maintenance
responsibilities at that time.
The BIA then transferred their maintenance budget over to
the tribe to maintain those roads. During the last 4 years, the
road maintenance budget has decreased and the roads are falling
into disrepair. In fact, we are being told to expect another
decrease in next year's budget. The cost of fuel, labor and
equipment and road materials is growing annually, and the tribe
cannot provide proper maintenance for the roads with declining
funding levels.
About half of the 72 miles of paved road are located within
the community of Peach Springs itself. These roads were paved
in the 1970's. There has not been any preventive maintenance
such as overlays, seal coats, chip sealing or crack sealing in
over 30 years.
The other paved road on the reservation is Route 18, which
is also known as the Supai Road. This road crosses the Hualapai
Nation and it is also the only viable access to the Supai
Reservation. This road was paved in 1971 and has not received
any overlays or chip sealing in 36 years.
Both of the above roads are now experiencing pavement
failures such as extreme alligatoring that now allows moisture
into the subgrade and can cause total pavement failure. I have
a couple of pictures of the Supai Road. In it, you can see
almost total failure along the center line, along the pavement
seams, and excessive alligatoring and patching in the driving
lanes.
I might turn it around and show the audience. That is the
Supai Road that crosses the Hualapai Nation. This is very
typical along that route.
Also on the reservation we have 236 miles of roads on the
reservation that are gravel, including the heavily traveled
Diamond Creek Road. This road provides the only vehicle access
to the Colorado River in the Grand Canyon between Lee's Ferry
and Lake Mead, which is about a distance of 200 miles. This
road is used for transporting river rafters and is essential to
tribal tourism enterprises.
Starting in Peach Springs, this 18 mile long road drops
from an elevation of 4,500 feet to 1,500 feet at the Colorado
River. This road washes out an average of three times per year
from flash floods. Due to the importance of the road to
tourism, it is a very high priority to reopen the road after it
has washed out. This effort usually takes the Hualapai road
crew about 3 days to open it back up and in extreme instances
it can take up to a week to open this road up.
I have some pictures of this particular road, which is
again the only access to the Colorado River for over 200 miles.
The first one I think shows where you are going down the wash,
and it shows the boulders and what not, and the wash bottom.
The second picture shows where the walls of the canyon are
starting to encroach.
If you look up to the upper left portion of that picture,
you can see the high walls of the canyon getting higher and
higher above you. At the time it enters into the canyon excuse
me, by the time it gets to the river, it is about 4,000 feet
deep. It also shows a stream that goes down the middle of the
road with the walls enclosing on each side.
I might note that these pictures were taken a couple of
weeks ago. That area is in a 12 year drought. The creek is much
lower than normal. It is usually at this time of year running
more full, but when a storm event occurs, when we get a
thunderstorm in the summertime, the water is stretched from
wall to wall.
I think the next picture shows it further downstream, about
a half mile actually from the Colorado River, and the walls are
again steeper and enclosing more along the road. The road now
is the creek bottom. There is no way to get the road away from
the creek. It will get washed out every time we get a storm
event upstream.
As the primary Western Region member of the IRR
Coordinating Committee, it is my responsibility to bring to
your attention the IRR program issues affecting the Western
Region and the program as a whole. My testimony is organized by
six categories, my written testimony, which includes finance,
safety, road maintenance, congestion, tribal consultation and
safety project successes.
At this time, I will review only the recommendations. We
have nine recommendations. One is to increase annually funding
levels for the IRR road program to expand the purchasing power
and to attend to the numerous unmet needs. I might note that
during the SAFETEA-LU process, Congress--and we thank you very
much--gave an increase of about 10 percent per year during that
funding cycle.
I might also note to you that in the State of Arizona, that
due to the very high growth rate and increasing costs of
asphalt and concrete and construction materials, the inflation
rate for road construction in the State of Arizona rose at a
rate of about 15 percent a year. So even with your generous
increases, we are still falling behind the curve in road
construction.
The next line we have is to reinstate full authorization
for the IRR road program by eliminating the ``lop off'' for
obligation limitation. We feel that the ``lop off'' doesn't
make sense in Indian Country. We are not getting enough money
as it is. It may make sense when you deal with States, but it
does not make sense in Indian Country.
We would like to establish and provide a $20 million
startup fund for an IRR loan program similar to the State
Infrastructure Banks. We would like to institutionalize a
process for the reliable collection of data to quantify road
maintenance needs. We would like to develop and implement a
safety management system for the IRR program.
We would like to streamline a process between the BIA
Division of Transportation, BIA Highway, Safety Office and the
BIA Law Enforcement to manage transportation safety. We would
also like to increase the funding level for the BIA Road
Maintenance Program to meet the safety needs and to protect the
IRR investments.
We would like to require any federally funded
transportation project on tribal lands to be included in the
Tribal Transportation Improvement program. And last, we would
like to expand the tribal consultation requirements for the
States and metropolitan planning organizations to include
consultations on all federally funded projects, in addition to
statewide planning and programming, and the long-range
transportation plan.
Mr. Chairman, this concludes my testimony. I know my time
is up, but I would like to make just one more point if I could.
I have only worked in Indian Country for 4 years. I worked in a
consulting practice as an engineer for 20 years. I was a city
engineer at the city of Pasco, Washington for 4 years, and I
worked for the Port of Bellingham in the State of Washington
for 10 years.
When I worked at the port, there were many avenues for
revenue that we had, that was available to the port to provide
for infrastructure improvements. We were in a totally
preventive maintenance program. We did a lot of overlays every
year and the infrastructure was in very good shape.
When I was a city engineer at the city of Pasco, basically
we divided up the city road miles. We divided by 20 and we
overlaid one-twentieth of the roads every year. Again, they had
B&O tax, they had property tax, they had transportation impact
fees. They had good sources of revenue to help maintain their
roads.
I might note that since I have worked for the tribe, the
only source of revenue is directly from the tribe itself and/or
the Federal Government. It is like working in a Third World
country. I feel like I am working in the Peace Corps or
something. There is not enough money.
With that, I will concluded and would be pleased to answer
any questions from the Committee.
[The prepared statement of Mr. Forrest follows:]"
Prepared Statement of Erin Forrest, Director of Public Works, Hualapai
Nation
I. Introduction
Good morning. My name is Erin S. Forrest. I have been employed as
the Director of Public Works for the Hualapai Tribe for nearly 4 years.
I am responsible for maintaining the public utilities, public buildings
and the public road system for the Hualapai Tribe.
The Hualapai Tribe has 2,042 enrolled tribal members with
approximately 1,300 residing on the reservation. The one million acre
reservation is located in northwestern Arizona, midway between the
cities of Flagstaff and Kingman. Kingman is the closest center of
services and is 50 miles to the west. 108 miles of the reservation
borders the Colorado River.
Hualapai Tribal Road Maintenance Program
660 miles of roads on the Hualapai Reservation need to be
maintained on a regular basis. According to the Indian Reservation
Roads (IRR) Inventory, 72.5 miles or 11 percent of the roads are paved;
236 miles or 36 percent of the roads are gravel; and the remaining 352
miles remain unimproved.
The Bureau of Indian Affairs (BIA) was responsible to maintain
these roads. However, about 15 years ago, the Hualapai Tribe entered
into a Public Law 93-638 self-determination contract with the BIA to
maintain the roads. The BIA has transferred to the Hualapai Tribe the
road maintenance responsibilities and annual maintenance funds to
service the roads. During recent years, the BIA road maintenance budget
has decreased and the roads are slowly falling into disrepair.
Over half of the 72 miles of paved roads on the Hualapai
Reservation are in the town of Peach Springs, the remaining miles are
on the IRR Route 18 to Supai. The roads in Peach Springs were paved in
the 1970's. IRR Route 18 was paved in 1971. None of these roads have
received any preventive maintenance, such as overlays, chip seals, or
crack sealing. Therefore, the roads are now experiencing pavement
failure, such as extreme alligatoring that allows moisture into the
sub-grade and causes total pavement failure.
The following three photos were recently taken to document the road
conditions on IRR Route 18.
Diamond Creek Road
Over 236 miles of roads on the reservation are gravel, including
the heavily traveled Diamond Creek Road. This road provides the only
vehicle access to the Colorado River in the Grand Canyon between Lee's
Ferry and Lake Mead (distance of over 200 miles). This road is used for
transporting river rafters and is essential to tribal tourism
enterprises.
Starting in Peach Springs, the l8-mile road drops from an elevation
of 4,500 ft. to 1,500 ft. at the Colorado River. This road washes out
an average of three times per year from flash floods. Due to the
importance of the road to tourism, it is a high priority to reopen the
road after it has washed out. This effort usually requires all the
Hualapai road maintenance personnel over 3 days work to open it back
up.
The following four photos show the gravel road conditions on
Diamond Creek Road.
With the cost of fuel, labor and materials growing annually, the
Tribe cannot provide maintenance of their roads with the declining
funding levels. The lack of funding is a hardship for the Tribe and
affects the economic, social and physical well being of the Tribe.
Hindrances include the transport of goods and services; bus routes for
the youth; transport of the elderly and sick; and the increased
emergency medical services response time. These are all great concerns
to the tribal leaders who are trying to provide for their people.
As the primary Western Region (WR) member of the IRR Program
Coordinating Committee, it is my responsibility to bring to your
attention the IRR Program issues affecting the WR and the program as a
whole. My testimony is organized by six categories--finance, safety,
road maintenance, congestion, tribal consultation and safety project
successes. Recommendations, with supporting statements, have been
provided for each topic. Examples are from Arizona, one of three state
areas in the WR. At this time, I will review only the recommendations.
II. Recommendations
As tribal governments in Arizona work to improve the transportation
network on tribal lands, numerous matters related to finance, safety,
road maintenance, congestion and tribal consultation are being
encountered. Infrastructure systems support society. The tribal
transportation system plays a key role in the economy, security and the
safety of the public at large. Recommendations to improve the IRR
program are:
Increase, annually, funding levels for the IRR program to
expand the purchasing power and to attend to the numerous unmet
needs.
Reinstate full authorization for the IRR program by
eliminating the ``lop off'' for obligation limitation.
Establish and provide $20 million start-up funds for an IRR
loan program, similar to the State Infrastructure Banks.
Institutionalize a process for the reliable collection of
data to quantify road maintenance needs.
Develop and implement a Safety Management System for the IRR
program.
Streamline a process between the BIA Division of
Transportation, BIA Highway Safety Office and BIA Law
Enforcement to manage transportation safety.
Increase the funding level of the BIA Road Maintenance
Program to meet the safety needs and to protect the IRR
investments.
Require any federally funded transportation project on
tribal lands to be included in the Tribal Transportation
Improvement Program.
Expand the tribal consultation requirements for the States
and Metropolitan Planning Organizations (MPO) to include
consultation on all federally funded projects, in addition to
statewide planning and programming, and the Long Range
Transportation Plan.
A. Finance
Purchasing Power
Increase, annually, the funding levels for the IRR program
to expand the purchasing power and to attend to the numerous
unmet needs.
All governmental transportation programs have been losing
purchasing power. Even with the increased funding level from the Safe
Affordable Flexible Efficient Transportation Equity Act: A Legacy for
Users, the tribal governments, utilizing the IRR program funds, cannot
meet their responsibilities.
The American Association of State Highway and Transportation
Officials (AASHTO) published a report entitled, Transportation: Invest
in Our Future, to assist the National Surface Transportation Policy and
Revenue Study Commission. The Commission was charged to study the needs
of America's surface transportation system and sources of revenue for
at least the next 30 years. The following paragraph is a quote from the
AASHTO report describing the challenge:
Commodity prices for steel, concrete, petroleum, asphalt, and
construction machinery increased dramatically from 2004 to
2007. As a result it is estimated that between 1993, the year
in which Federal fuel taxes were last adjusted, and 2015,
construction costs will have increased by at least 70 percent.
To restore the purchasing power of the program, Federal highway
funding will have to be increased from $43 billion in 2009 to
$73 billion by 2015. To restore the purchasing power of the
transit program, Federal funding would have to be increased
from $10.3 billion in 2009 to $17.3 billion in 2015.
Lopping off for Obligation Limitation
Reinstate full authorization for the IRR program by
eliminating the ``lop off'' for obligation limitation.
The appropriations process has been the traditional process for
controlling annual Federal expenditures. However, for transportation
spending, a budgetary control mechanism, referred to as Obligation
Limitation, has been imposed.
Within the larger, national transportation program, the IRR program
is a relatively small program. The portion of funds for the IRR program
is less than 1 percent of the annual total in guaranteed obligation
authority for the surface transportation program, which is
approximately $50 billion.
Prior to the enactment of the Transportation Equity Act for the
21st Century (TEA-21), the IRR program was exempt from Obligation
Limitation. The lopping off of 9 to 14 percent from the current IRR
program for obligation limitation is a significant reduction of
spending authority for tribal transportation, which is already severely
underfunded. Limited funds are directly impacting the safety and
wellbeing of the general public, as well as American Indian citizens.
Innovative Finance
Establish and provide $20 million start-up funds for an IRR
loan program, similar to the State Infrastructure Banks (SIB).
Similar to states governments, tribal governments are dealing with
limited resources and inflation issues. The annual inflation costs in
Arizona for labor and materials are estimated between 10 to 25 percent.
Therefore, tribal governments are beginning to view low-interest loans
and construction advancement as viable strategies for efficiently
planning and completing transportation projects.
SIB operate similar to banks, offering financial assistance thru
loans or credit enhancements for eligible projects. As the loans are
repaid, the SIB is replenished, moneys re-loaned, leading to the SIBs'
sustainability. Thirty-two states have active SIB, although all may
create them.
An IRR SIB could provide assistance in two ways: (1) loan guarantee
program--a pool of money that the state SIB could access in case of
defaults and/or (2) loan program--a source of funds to lend to tribal
governments. Tribal governments could use the IRR tribal allocations
and other sources to repay the loans. More importantly, the BIA would
be ensured of repayment, because IRR tribal allocations could be
withheld, if the tribal government defaulted on payments.
In 1998, the Arizona SIB, Highway Expansion and Extension Loan
Program (HELP), was established to bridge the gap between
transportation needs and available revenues. Tribal governments are
eligible borrowers for the low-interest loans.
However, four HELP requirements have proved challenging for full
tribal participation. The topics of tribal concern have been: (1)
waiver of sovereign immunity, (2) dispute resolution in state court,
(3) creation of transportation authorities or limited liability
corporations (LLC), and (4) disclosure of tribal government assets. In
addition, Federal and Arizona laws specify that the Federal SIB dollars
are intended to improve the Federal Aid System, State Routes, the
National Highway System, and the State Highway System, and not the BIA
or tribal road systems.
Tribal solvency is a major issue for Arizona Department of
Transportation (ADOT). In the case of local governments, ADOT provides
them revenue from the vehicle fuel sales. These funds can be withheld,
should a local government default on a loan payment. Unlike local
governments, tribal governments are not eligible to receive revenue
from the sales of vehicle fuel in Arizona. Therefore, ADOT requires the
tribal establishment of LLC. Although, the LLC can be established under
tribal codes, ADOT prefers state-chartered corporations, because
disputes would then be resolved in state courts, not tribal courts.
Tribal members and governments are eligible to receive
reimbursements for only vehicle fuel taxes. Three tribal governments in
Arizona have negotiated agreements with ADOT. However, a portion of the
remaining tribal governments has not applied because there are no gas
stations on the reservations or the negotiations have not delivered
results.
It is quite unfortunate that SIB exist, and yet are not structured
to benefit all governments with low interest loans. Some tribal
governments in Arizona have negotiated loans from banks where tribal
funds are deposited. The Inter Tribal Council of Arizona is assisting
the tribal governments and the Arizona Commerce and Transportation
agencies to explore alternatives to replace the current requirements.
B. Safety
Arizona has been recognized as an ``opportunity state'' by the
Federal Highway Administration, U.S. Department of Transportation. A
state that has had a motor vehicle crash (MVC) mortality rate
consistently higher than the national MVC mortality rate and has the
``opportunity'' to make strides in transportation safety.
American Indians in Arizona are a population at risk for injuries
and fatalities associated with MVC. Young American Indian men, between
the ages of 15 and 35 years, are most at-risk. In Arizona, MVC injury
and mortality rates for American Indians have been consistently higher
than the statewide rates over the last 25 years.
The 1998-2005 estimated economic losses for American Indian in
Arizona totaled approximately $904,431,000. This estimate is based on
combined information from the National Safety Council (for fatality
estimates) and the Arizona Department of Health (for the number of
American Indian MVC fatalities for a select portion of Tribes).
Unintentional injuries sustained from MVC are one of the top five
causes of death for American Indians in Arizona.
One of the greatest tribal challenges in Arizona has been the
automation and analyzation of tribal crash data. To help tribal
governments manage MVC issues requires capacity-building programs
involving adequate multi year funding and local technical assistance.
In Arizona, tribal crash data are contained in manual environments.
This type of system significantly hinders data accessibility and
analyses. A manual data system may be inexpensive to maintain, but the
labor for extracting and organizing the data is expensive. In depth
crash analyses, identifying high crash locations and causation, are not
being completed on a regular basis. The BIA Highway Safety Office
(BIAHSO) documented the needs in the 2005 final report prepared after
the first national assessment of tribal traffic records. The Indian
State Traffic Records Assessment report stated:
Not only must the crash data be accurate, timely and complete,
it must also be analyzed thoroughly. This means that the data
must be accessible. In general, the more difficult the data are
to access, the less likely the crash data will be studied or
analyzed in depth. It did not appear that in depth crash data
analyses were conducted by the tribes.
For Arizonans and American Indians, the overall trends in mortality
rates due to MVC have decreased over time. However, Figure 1 shows the
MVC mortality rates for American Indians have remained much higher than
the MVC mortality rates for the general population in Arizona.
The MVC mortality rate for American Indians in the U.S. is nearly
twice the rate for general population. The MVC mortality rate for
American Indians in Arizona is about four times the rate for the
general population in the U.S. Figure 2 illustrates the public safety
disparity.
Reliable Collection of Data to Quantify Road Maintenance Needs
Institutionalize a process for the reliable and standardized
collection of data to quantify road maintenance needs.
The maintenance of roads is a critical transportation safety issue.
Sufficient resources are needed for safety improvements, such as:
warning and speed signage, pavement marking improvements, roadside
vegetation removal for clear zones, effective cattle guards, maintained
fencing, nighttime retro reflectivity inspections, scheduled traffic
counts, roadway preservation and pothole filling. In Arizona, adequate
maintenance resources to complete low cost safety improvements are key
to the success of the road safety audits and eliminating roadway and
roadside hazards on tribal lands.
Not all BIA regions and agencies or tribal governments that have
contracted or compacted maintenance responsibilities are utilizing a
standardized maintenance management system. The BIA needs funds to
advance the use of this technology and to make it a requirement of the
maintenance program.
Tribal governments and the BIA Division of Transportation (BIADOT)
prepared with data could document and justify the need for additional
staff, equipment, fuel and materials to the Departments of Interior and
Transportation and the Office of Management and Budget. To collect
maintenance data in the WR, the BIADOT has completed two equipment
studies and initiated a maintenance management system. However, full
participation by all agencies and tribal governments responsible for
road maintenance is not occurring. Limited data hampers not only the
maintenance program, but also diminishes support for transportation
safety decisions, such as quantifying issues, determining priorities,
and targeting resources.
Safety Management System (SMS) for the IRR Program
Develop and implement a SMS for the IRR program.
Tribal governments need data assistance from BIADOT and the Federal
Lands Highway Office to reduce the number of fatalities, injuries and
property damage related to MVC on tribal lands. A systematic approach,
in conjunction with adequate resources, would greatly improve (1) the
coordination and safety related activities of education, enforcement,
engineering, emergency medical services (EMS) and injury surveillance;
(2) the collection, maintenance and analyses of traffic records; (3)
the examination and prioritization of issues or emphasis areas; and (4)
the implementation and evaluation of countermeasures.
As states advance improvements to their safety plans, traffic
records, and safety programs, the tribal governments, who face the
greatest challenges, also need sufficient resources and the program
flexibility to protect the public. BIADOT needs to proceed to implement
this safety management tool and the rules published in February 27,
2004.
BIA Management of Transportation Safety
Streamline a process between the BIADOT, BIAHSO and BIA Law
Enforcement to manage transportation safety.
Nationally, MVC are one of the leading causes of fatalities and
injuries for American Indians. The causation of MVC involving American
Indians can be linked to a backlog of unsafe roads, as well as driver
and passenger behavior.
In Arizona, many MVC occurring on tribal lands involve single
vehicles leaving the roadway, rolling over and smashing into fixed
objects along the roadside. Skewed intersections and unattended
roadside vegetation limit sight distance for the drivers. Wild and
domestic animals on the roadway, lack of retro reflectivity from the
signage and pave markings, and inconsistent or non-existent signage are
factors contributing to crashes on two-lane rural roads.
Opportunities to establish or broaden tribal safety projects and
programs exist thru the Federal Highway Administration (FHWA) and the
National Highway Traffic Safety Administration (NHTSA), agencies of the
U.S. Department of Transportation. The BIADOT receives funds thru the
FHWA and NHTSA funds the BIAHSO. However, critical leadership from and
coordination between these two BIA offices needs to occur. BIA Law
Enforcement and Indian Health Service also play major roles in
transportation safety and coordination with these two agencies is
essential.
Many programs and funding opportunities are not being promoted to
the tribal governments, departments and safety coalitions, including
work with EMS, courts, law enforcement, injury surveillance,
transportation, education, and substance abuse services.
Administratively, BIA is contributing to this public health disparity.
Transportation safety needs to be a priority for the BIA.
C. Infrastructure Maintenance
Increase the funding level of the BIA Road Maintenance
Program to meet the safety needs and to protect the IRR
investments.
Maintenance funding levels continue to decrease. The tribal
transportation and BIA agency staff in the WR have been informed that
performance results are not being demonstrated by the BIA, so funding
levels have been cut. However, staff are not familiar with the
processes being used by the Federal Government to assess and improve
agency performance and how this process determines the maintenance
funding.
According to the 2004 Program Assessment Rating Tool (PART), the
BIA operation and maintenance of roads rating was decided on:
1) States, counties and local governments constructed over
38,000 miles of roads on reservations, but many refused to use
their Highway Trust Funds to reconstruct these roads and
bridges or provide adequate maintenance; and
2) The program lacks adequate information on the conditions of
the reservation roads and bridges.
The Government Performance and Results Act of 1993 (GPRA) Strategic
Plan of the Department of the Interior for Fiscal Years (FY) 2007-2012
includes a goal to advance quality communities for Tribes and Alaska
Natives. Public safety was incorporated. The two transportation
indicators were acceptable levels (according to the Service Level
Index) of (17 percent) roads and (51 percent) bridges in 2012.
The operation of BIA roads was evaluated almost 4 years ago.
Assessing road and bridge conditions, encouraging states and local
governments to meet their road responsibilities and scheduling
independent program evaluations does not appear to offer immediate
outcomes for the remediation of the maintenance needs or result in
sufficient funding levels to address these serious issues.
In FY 2006, the Department of Interior appropriated $4.135 million
to the BIA WR to maintain 5,405 miles of BIA roads and 215 BIA bridges.
The WR expended $4,178,722 and still didn't have sufficient funds to
address all areas of maintenance.
According to BIADOT, the default value for optimum road maintenance
is $14,000 per mile. The WR is spending less then $700 per mile. In
2006, maintenance per mile costs averaged $636 for paved roads; $510
for gravel roads; and $65 for improved earth roads. Unimproved earth
roads are not maintained.
The IRR bridges within the WR were last inspected in 2005. The
inspection identified approximately $3,674,150 of urgent (safety)
bridge maintenance needs and another $1,415,299 of non-urgent (routine)
bridge maintenance needs. Few bridge needs have been addressed.
Much of the tribal lands within the WR are expansive and the IRR
are isolated. Staff travel expenses, including fuel and non-productive
time, to and from the work sites are expensive. $256,239 was spent, in
2006, to get employees to and back from the job sites.
According to a 2005 assessment and inventory of WR equipment, one-
third is nonnfunctional; one-third is in fair condition; and one-third
is operable, but aging equipment. Much of the maintenance equipment is
20-30 years old, parts are difficult to acquire or non-existent, and
the operating costs per hour are escalating. In FY 2006, $455,067 was
expended by the WR on equipment operations, but no procurement of new
equipment.
Signage installation per sign has been averaging $250 to $350,
depending on the grade. Raised reflective pavement markers average
$6.50 to $7.50 each. To be effective, markers are needed at 30-foot
intervals, especially in unlit areas. Signs and raised pavement markers
are only being placed or replaced during a construction project. On
average, staff salaries have accounted for 62-66 percent of the total
WR maintenance budget. In FY 2006, 1.2 percent of the budget was
expended on staff training.
2003 WRO Road Maintenance Equipment Inventory
There are 13 agencies within the WR. Seven have full time BIA
maintenance operations and the remaining six have BIA and/or tribal
maintenance operations. All agencies experience severe funding issues
and cannot maintain their responsibilities. Following is a description
of one of the agencies, as an example of what all WR agencies are
encountering.
Fort Apache Agency Road Maintenance Program
The agency is concerned about the level of service being provided
to the tribal government, especially in case of snow removals and fire
or flood emergencies. Over 50 road maintenance activities are the
Agency's responsibilities and are in jeopardy of not being accomplished
with the current operating budget. Examples include:
Equipment will not be repaired, leading to further
deterioration.
Fuel for equipment operations cannot be purchased.
Safety road signs will not be replaced.
Road striping will not be done.
No after-hour emergency response or assistance will be
available.
No road patching material will be available.
Customer service will be inadequate.
No coverage for other needs (Salt River Canyon, etc.) will
be available.
Due to a lack of maintenance, reconstruction of roads will
accelerate.
Snow and ice removal response will only take place during
regular hours.
In FY 2007, the road maintenance program was funded $475,539
compared to the FY 2006 funding level of $514,035. The program had been
operating on an annual average budget of $800,000 in the 1980's.
In 2006, the agency researched the resources available to an ADOT
maintenance program located on the reservation. The comparison is
charted in the following table.
D. Congestion and Hyper-Growth
Require any federally funded transportation project on
tribal lands to be included in the Tribal Transportation
Improvement Program.
Arizona is one of the fastest growing states in the Nation. Due to
an influx of population in concentrated areas of the state and travel
demands, tribal governments located in traditionally rural agricultural
and forest areas are being impacted by residential, commercial and
retail development, as much as the local and State governments.
To alleviate congestion on the arterial access routes, developers,
adjacent communities and the state desire to spread the traffic over
all the transportation networks. As a result of the expanded growth,
the tribal governments are subject to encroachment, unwanted traffic,
road widening and safety issues. The external circumstances are
affecting tribal resources. The Tribes' IRR program funds are stretched
to address numerous demands beyond building BIA-owned roads. Tribal
governments are dealing with numerous external meetings, land use
plans, economic development, noise, air quality and archaeological
resources encroachment.
In an effort to squeeze more homes into residential master planned
areas, developers are requesting waivers on buffer zone requirements.
Some developers are encroaching upon existing rights of way for
roadways, as well as reservation boundaries. One example involves 7,500
homes to be constructed on 2,179 acres adjacent to the tribal lands and
the tribal headquarters. Travel demands, under build-out conditions,
are expected to exceed the current two-lane road capacity, so the
nearby city has proposed a six-lane arterial roadway in their
transportation study.
The map below, provided by the MPO, Maricopa Association of
Governments, depicts the Arizona population density for the year 2000
compared to the estimated density for year 2050. The red areas
represent population growth and the light grey areas signify the Indian
reservations.
E. Tribal Consultation
Expand the tribal consultation requirements for the States
and Metropolitan Planning Organizations (MPO) to include
consultation on all federally funded projects, in addition to
statewide planning and programming, and the Long Range
Transportation Plan.
The traditional Federal approach to achieving a national surface
transportation system has been the operation, maintenance and
preservation of roads. This has largely been accomplished by fostering
the Federal-State relationships and dedicating the majority of
resources toward States. The hierarchical system is arranged so States
are responsible for working with the tribal and local governments on
the statewide transportation programming and planning.
Planning is a major transportation function. However, the typical
planning process is expanding beyond the preparation of road projects
to transportation management and decision-making for areas, such as air
quality, congestion, and the management of safety, access, incidents,
vegetation, data, etc.
Involvement from both tribal and local governments is crucial for
the development of these types of activities. However, at these levels,
the transportation functions and responsibilities vary by jurisdiction,
depending on available resources, size, transportation priorities,
state constitutional arrangements, and responsiveness to the political
agendas. The States need to appreciate these differences and consider
the resource limitations, as the consultation processes are developed.
Largely to engage the local governments, the ADOT has structured
working and financial arrangements with the MPO and regional councils
of governments (COG) to conduct regional planning functions. Tribal
government in Arizona may not be paid member of these associations. A
small number of tribal staff participate on MPO and COG transportation
technical committees. Tribal reasons for not joining the associations
vary the association priorities may not align with the tribal
priorities, tribal votes don't impact the majority voting outcome,
tribal lands may be located in several association areas, etc.
In 2006, ADOT established a tribal government-to-government
consultation policy. Since the policy is new, the consultation process
is being addressed case-by-case. This has been problematic because
tribal governments are either not being consulted or being consulted
late in the process. ADOT outsources many activities and the contracts
need to be explicit about the tribal consultation process.
Neither sufficient time nor moneys have been designated in the
projects' budgets to ensure input for 22 tribal governments. Therefore,
the recommendation is being made to expand the current State and MPO
consultation and cooperative requirements to include tribal
consultation on all projects that are federally funded to ensure that
States and MPO follow thru with the consultation requirements.
III. Project Collaboration to Improve Tribal Transportation Safety
Beginning in 2001, the Inter Tribal Council of Arizona, Inc. (ITCA)
has persistently pursued resources from various agencies in Arizona to
reduce MVC on tribal lands. Due to limited funding, all of the
demonstration projects have been supplemented with ITCA and tribal
moneys. The projects have been useful for all involved and have served
to initiate tribal activities.
However, tribal governments are in need of more than sporadically
funded projects. They are in need of ongoing, sustainable programs.
If tribal governments are to comprehensively address the
significant loss of lives, they need resources to build capacity. This
program approach requires multi-year funding and ongoing technical
assistance.
Hualapai Tribe Occupant Protection Goals
A Hualapai Traffic Safety Committee was established to work with
ITCA staff to analyze the crash data collected by the tribal police.
The analysis helped the Committee to determine four emphasis areas to
reduce MVC injuries and fatalities. A work plan was created to
structure the goals, objectives and activities for occupant protection,
priority one.
No one tribal department administered a traffic safety program, so
tribal, Federal and state in-kind services were combined to initiate
the occupant protection goals. A FY 2007 grant was awarded by the
BIAHSO to employ an officer to coordinate the occupant protection
implementation tasks.
White Mountain Apache Tribe (WMAT) and San Carlos Apache Tribe (SCAT)
Seatbelt Focus Groups with Young Men
The WMAT and SCAT staff collaborated with ITCA to convene four
meetings with young American Indian men, ages of 15 to 25 years. The
meeting discussions focused on the young men's perceptions of seatbelt
usage and non-usage.
Since young American Indian men are most vulnerable to being
injured or killed in MVC, the project concentrated on acquiring their
advice to improve seatbelt usage. The project was funded by the ADHS
and overseen by a multi-disciplinary advisory committee, including BIA
and IHS. The outcome assisted the tribal government staff to develop
two different seatbelt approaches to reach their community members.
WMAT and SCAT Seatbelt Campaigns
The WMAT and SCAT, with assistance from ITCA, each established
diverse safety coalitions to create seatbelt promotional campaigns
appropriate to their tribal membership. Members were recruited from
police, fire, EMS, health, housing, transportation, Indian Health
Service and the BIA Fort Apache Agency. Each coalition cooperated to
design the logos, select appropriate promotional materials and to
complete the following activities.
Activities included combined seatbelt and sobriety checkpoints,
seatbelt surveys, a community safety night, mock crashes at the high
schools, distribution of child restraint systems, newspaper articles
and advertisements, radio public service announcements, observational
seatbelt studies, citation monitoring and the design and distribution
of promotional materials. The roads program at the BIA Fort Apache
Agency designed and installed ``Buckle-Up'' signage on the Fort Apache
Reservation.
Tohono O'odham Nation (TON) Road Safety Audit (RSA)
The TON with ITCA's assistance utilized the RSA methodology to
identify hazardous roadway issues and to increase interaction with a
MPO, Pima Association of Governments (PAG), to reconstruct a safer
intersection. The TON RSA project was the first ADOT-sponsored RSA
project to be conducted.
The BIADOT Western Region, the BIA Papago Agency, and ADOT Tucson
District, assumed responsibilities for the low-cost roadway
improvements--pavement markings, signage, vegetation removal, slope
reduction, and a cattle guard replacement. TON will be responsible for
the enforcement of parking and speeding near the intersection and
paying the utility charges for a new street light. To address sight
distance, shoulders and turn lanes, the ADOT, BIA, PAG and the TON will
work toward a $2 million reconstruction project.
Mr. Chairman, this concludes my testimony. I would be pleased to
answer questions from the Committee.
The Chairman. Mr. Forrest, thank you very much.
I think all four of you have described something similar to
the Committee, and that is a determination to try to make a
difference in improving roads and infrastructure, and yet a
lack of resources. All of you have described the planning that
you have gone through, the work you have been talking about
this morning. We continue to get other information from the
agencies to try to determine what they are doing. Right at the
moment, for example, we are on the floor of the Senate debating
a $640 billion--that is with a B--$640 billion defense
authorization bill, with substantial increases in that piece of
legislation.
It certainly is a priority to fund the needs of our
soldiers and to take on the terrorist fight and all of those
issues. But it also remains a priority to take care of things
here at home inside this Country. What we are discovering is
substantial proposed cuts in many of the domestic spending
accounts. We have to try to figure out on this Committee, both
from an authorizing standpoint and also recommendations to
appropriators, how we come up with different approaches and
additional funding to try to address the needs.
So I don't have a lot of questions for you. All of you have
submitted substantial statements. I think your contribution
today is very important.
Mr. Kashevaroff, you described a circumstance south of
Anchorage with a substantial bay. Of course, every time we talk
about something here in the Congress, somehow Alaska is
different because it is so unbelievably big.
Senator Murkowski. It is different.
[Laughter.]
The Chairman. It is different, yes. It is very different.
Lack of roads, you describe a bay. How large is the bay that
you have to cross in order to get to, would you call it getting
to the mainland? Tell me the circumstances.
Mr. Kashevaroff. It is 13 miles across the bay to get to a
paved road that will take you to Anchorage in 4 hours. So to
make it from Seldovia to Anchorage, you have to hop on a plane
or take a boat, and then drive four more hours.
The Chairman. And you can't circumnavigate the bay? It is
too large for that?
Mr. Kashevaroff. Yes. My wife wants a road that takes 60 or
70 miles over mountains to get to the road. So a ferry is what
we really need.
The Chairman. Every part of our Country has different,
unusual, unique needs. Alaska in virtually every subject we
cover on this Committee, whether it is dentists or roads, they
have unique and different needs because it is such an unusual
State in its geography.
In North Dakota, Mr. Red Tomahawk, your reservation spans
two States, North and South Dakota. How many acres exist on
your reservation or square miles, whichever you prefer?
Mr. Red Tomahawk. It covers 2.3 million acres.
The Chairman. And how many miles of roads?
Mr. Red Tomahawk. We have over 200 miles of BIA System and
Tribally-owned roads and hundreds of miles of state and county
routes.
The Chairman. I have driven a lot of your roads, Mr. Red
Tomahawk. I can confirm your concern about the lack of funding,
but I also know that the Standing Rock Sioux Tribe has
aggressive efforts to try to address them. I appreciate your
efforts.
Mr. Garrigan, how many miles of roads exist on your
reservation?
Mr. Garrigan. Approximately 550 miles, and of that there
are only about 54 miles of other roads like State. There are no
county roads on the Red Lake Reservation. There are two State
roads that traverse the reservation.
The Chairman. Mr. Forrest, what is the size of your
reservation in square miles or acres?
Mr. Forrest. The reservation is right at one million acres.
It fronts along the Colorado River about 108 miles, so a lot of
it is just really steep cliff areas. It is a really very
beautiful reservation, but a lot of it is very inaccessible.
The Chairman. Senator Murkowski?
Senator Murkowski. Thank you, Mr. Chairman.
And thank you all for your testimony. It has been very
important to listen to the facts on the ground, the realities
of what you deal with. While the discussion has been about the
lack of money and the need for more, certainly toward
maintenance, just for general safety and upkeep of the roads, I
think Mr. Kashevaroff, you pointed out a real glaring problem
that we have with the system, that even when there might be the
money there, even when the money is promised, that there are
still delays that confound the ability to move forward with a
project.
As you described, you are 2 years behind in getting
anything moving in providing access for the people of the
Seldovia Tribe.
In my mind, that is something that we ought to be able to
deal with. If it is a bureaucratic snarl, if there is a problem
with getting the money from A to B, we need to be able to
figure out how we make that happen in a more efficient manner.
So it is particularly frustrating for me after our
experience with the Petersburg Tribe to now see Seldovia in the
similar situation. So it is not always about the need to plus-
up the budget. It is making sure that the dollars that are
available actually get on the ground to make the roads, to make
these connections happen.
I am not going to doubt your testimony, but I have never
been able to make that trip from Homer to Anchorage in 4 hours.
You must be a faster driver than I am, but we won't put you on
the hot seat for that.
[Laughter.]
Senator Murkowski. Let me ask you just very quickly whether
or not, Mr. Kashevaroff, you believe that the new IRR funding
formula that was published back in 2004, do you think that it
equitably funds the Alaska tribes? Do you think it is fair?
Mr. Kashevaroff. I think that there could be improvements.
It really comes down to, as you said, to how it interacts with
BIA. When we put roads on our system and then have BIA tell us,
no, you can't do that; or a lot of the roads that the villages
in Alaska do have might be owned or maintained by the State.
Those are the access points we have, and we need to be able to
put those roads on the system. Up until at least this year, the
State and the BIA have not come to terms on an agreement to add
those roads to our system.
So when you hear that the State of Alaska roads increased
by 1,800 percent, which is a huge increase in the last decade,
but a decade ago very few villages in Alaska were putting
anything on the system. We weren't really accessing IRR. Only
recently we decided that we realized that we could be accessing
IRR, so we started trying to get our inventory on.
Senator Murkowski. Well, it was in 2003. It was June 4. We
had Loretta Bullard here before the Committee testifying on
this same issue. She told the Committee that a complete
inventory of the roads had never been compiled; that the BIA
had never surveyed our villages to identify the roads that were
eligible for support. That was just in 2003.
So yes, we should be seeing a big step up in terms of the
number, because up until 2003, we had not even been registered
as far as that goes.
Let me ask just one more question of you. We have this high
priority project program that allows for more competitive
grants, a process for competitive grants, to help out the
funding for the smaller tribes. Is this something that Seldovia
has taken advantage of? Are you familiar with this particular
program?
Mr. Kashevaroff. I don't think we have taken advantage of
it yet. Through the ferry project, we have been leveraging
funds from Congress and Federal Highways, from BIA, from the
State of Alaska. We have been trying to through our self-
governance leverage a lot of different funds. So any type of
programs like the one you just mentioned are of interest to us.
What we found is, though, that the various pots of money
have so many different rules and so many different ideas, even
though Congress has said, you know, Federal Highways, you shall
treat IRR like ISDEAA or self-governance, we can't actually get
them to say, yes, we will recognize it as self- governance
funds.
Even the BIA, they will recognize it as self-governance,
but they won't deal with us in a government-to-government
trustful manner that we could expect. When you negotiate
things, you have to have reasonable people on the other side of
the table that want to achieve something similar to yourself. I
think the culture that we are faced with is a culture of not
seeing Indians achieve things, but it is maybe a 1907 culture
of, you know, the BIA is going to run the shop for you; we
don't care if you want self-governance or not.
As a matter of fact, I have a letter I need to deliver to
Senator Dorgan, Chairman Dorgan and you, from the Cheesh-Na
Tribe in Alaska who in 2003 had a signed agreement with the BIA
for their money, and they haven't gotten it until just
recently. They were supposed to get almost $1 million, and they
have already started the project, and BIA gave them $35,000 and
said, oh, this is all you are supposed to get, even though we
had told you we were going to give you almost one million
dollars.
I mean, 4 years later they come and cut the budget by a
huge percent. That is crazy. They just have this mentality
there in the BIA, at least in Alaska, that we are not going to
have roads; we are not supposed to be in business.
And so when we are not on the road system, when we are not
on the inventory, it is because we have this roadblock. We
really need Congress to sit down and tell BIA to get with the
program to help the tribes out, instead of trying to hinder the
tribes all the time.
Senator Murkowski. Hopefully, some of the testimony that we
have had this morning will allow for further discussion with
the BIA as to how we move forward and make sure that the funds
that are available get on the ground to the tribes to make the
difference, and that we can continue to work to provide for the
needs within Indian Country when it comes to transportation and
to provide for the health and safety of those that are
traveling on the roads.
I couldn't agree with the Chairman more when he says it
shouldn't make a difference when you cross over that boundary
into a reservation, into Indian Country, that you shouldn't be
able to see the change in the conditions. It ought to be
seamless. It is not. We have a lot of work on.
I appreciate the Chairman's attention.
The Chairman. Senator Murkowski, thank you very much.
Once again, let me thank all of you for traveling some
distance to be with us. We will benefit greatly from your
testimony. It will be one of those issues that we will continue
to work on very aggressively here.
Yes, Mr. Red Tomahawk? Do you wish to make one additional
comment?
Mr. Red Tomahawk. Yes, Mr. Chairman. I want to share with
you, I have a letter from the Oglala, Sioux Tribe to you, that
I wanted to share for the record, on your issue regarding the
comprehensive roads inventory. *
---------------------------------------------------------------------------
* The information referred to has been printed in the Appendix.
---------------------------------------------------------------------------
The Chairman. Without objection.
We will keep the record open for 2 weeks. Any additional
testimony that will be submitted, and we would invite
submissions from across the Country and from Indian tribal
leaders, will be included as part of the permanent record.
This hearing is adjourned.
[Whereupon, at 11:15 a.m., the Committee was adjourned, to
reconvene at the call of the Chair.]
A P P E N D I X
Prepared Statement of Chadwick Smith, Principal Chief, Cherokee Nation
Thank you Mr. Chairman, Ranking Member, and Members of the
Committee. I am Chad Smith, Principal Chief of the Cherokee Nation. I
appreciate this opportunity to provide you with testimony. I would also
like to offer my condolences to the Committee for the passing of
Senator Craig Thomas, who committed his time and effort to Indian
issues throughout his tenure in the U.S. Senate.
The Cherokee Nation has 270,000 citizens living in almost every
state of the Union. Approximately 100,000 Cherokee citizens reside in
the 14 county jurisdiction of northeastern Oklahoma. Of these 14
counties, 13 are predominantly rural communities hampered by limited
access to vital services and unpaved or inadequate roads. The Cherokee
Nation's Roads Department is charged with handling over 1,500 miles of
roadway. Because of the disparity between needs and funding, the
Council of the Cherokee Nation has appropriated an extra $2 million per
year to assist with unmet needs. The Cherokee Nation works with
Federal, state, and other tribal entities to collaborate on
construction, which is an effective and efficient use of resources. The
Nation dedicates a significant amount of its own tax revenues toward
joint tribal-state projects, and cooperates with the state on project
planning, survey, and execution.
The support of this Committee during the highway reauthorization
process was pivotal. You raised the level of awareness of needs in
Indian Country, which ultimately helped to increase the level of
funding for the Indian Reservation Roads (IRR) program in the ``Safe,
Accountable, Flexible, Efficient, Transportation Equity Act--A Legacy
of Users'' (SAFETEA-LU). However, even within Indian Country, little is
known about the unique IRR needs of the Cherokee Nation and other
tribes in Oklahoma. Therefore I believe it imperative that the
Committee have a full understanding of why the IRR program is critical
to our future success as tribal nations.
For many tribal members in Oklahoma, a safe and decent
transportation system is not a luxury we enjoy. Too frequently I hear
of needless and deadly accidents because of unsafe roads. Too often I
speak to citizens who cannot retain a job because their vehicles are
inoperable. In April 2006, the Tulsa World reported that traffic
accidents are the leading cause of death among Oklahoma residents under
25 years old. In fact, 38 of the 100 most dangerous roads lie in
northeastern Oklahoma within the Cherokee Nation. The highest
concentration of fatal and serious-injury crashes in the state was in
Cherokee, Ottawa, and Rogers counties--on our lands. \1\ Poor
visibility, sharp curves, and narrow shoulders are all common within
the Cherokee Nation, and are all fixable conditions. They can be
remedied by safety features such as reflective markers, guard rails,
and rumble strips. Increased law enforcement and emergency medical
services can decrease unnecessary fatalities. The unique status of
Indian land in Oklahoma has prevented the BIA thus far from adequately
addressing these issues and adding necessary safety measures.
---------------------------------------------------------------------------
\1\ Angel Riggs, ``State traffic deaths top U.S. average,'' Tulsa
World, April 13, 2006, sec. A, p. 1.
---------------------------------------------------------------------------
One of our major concerns has been the reluctance of the BIA to
define Cherokee Nation roads as roadways covered by IRR funding. The
BIA has previously argued that the Cherokee Nation must own all its
lands to receive its funding. As this Committee saw during the Law
Enforcement Hearing, Indian country is a checkerboard of restricted,
trust, and non-tribal land--an arrangement that has caused
jurisdictional confusion in the past. However, the close proximity
between different categories of land should not preclude IRR funding.
The definition of an Indian Reservation Road is one that provides
access to all Indians and Indian lands, not just reservations. The
Cherokee Nation's transportation system in Oklahoma clearly falls
within this definition, and therefore merits IRR funding under SAFETEA-
LU. Proper interpretation of the IRR program's application would allow
the Nation to more adequately address the road conditions I described
earlier. The current interpretation harms our citizens and other
Oklahomans, and also hinders our ability to prosper economically in
rural areas.
Another concern is the division between two types of Federal
funding: construction funding and maintenance funding. The BIA
allocates funds for roadway construction, but not for maintenance. This
failure to properly fund road maintenance has prevented the Cherokee
Nation from preserving its roads over time. This requires more frequent
reconstruction of roads, which is not an efficient use of Federal
resources.
We believe that with the help of Congress, the Cherokee Nation will
have the power to implement key safety features that will reduce the
cause of death. Today, we are experiencing greater volumes of traffic
on our roadways than ever before. Commercial expansion has helped us to
become more self-sufficient while also producing a greater strain on
existing transportation routes. With the attention of the IRR program
and the addition of maintenance funding, the goals of SAFETEA-LU will
be realized on our roadways.
Thank you for this opportunity to present written testimony on
behalf of the Cherokee Nation.
______
Cheesh-na Tribal Council
Chistochina, AK, July 12, 2007
Hon. Byron L. Dorgan,
Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Honorable Dorgan:
In light of the Senate Committee on Indian Affairs hearing on
transportation issues, I write this letter to request your assistance
in addressing egregious problems with the Bureau of Indian Affairs'
(BIA) administration of the Indian Reservation Roads (IRR) Program
funds of the Cheesh-na Tribal Council.
Cheesh-na Tribal Council has planned, designed and begun
construction on a significant road impovement project serving our
community, which we implemented pursuant to our Self-Governance
agreements with the Secretary of Interior under the Indian Self-
Determination and Education Assistance Act (ISDEAA). In order to make
this project feasible, Cheesh-na has sought and received Federal
support in addition to the annual allocation of IRR Program funds. For
instance, we received support from the Army Corps of Engineers and
competed for and received a grant from the IRR High Priority Project
fund. Yet, a key funding component for our project is still missing:
approximately $815,000 in IRR Program funding obligated for the project
from the BIA in FY 2003.
This funding has been the subject of numerous conversations and
assurances from BIA that these funds would be distributed to Cheesh-na
in our FY 2007 IRR Program Addendum (see, e.g., the attached March 19
letter to LeRoy Gishi and Peggy Exendine). Indeed, this $815,000 in FY
2003 funds is expressly identified as an amount due to Cheesh-na in our
FY 2007 IRR Program Addendum (please see attached IRR Program Addendum
to Cheesh-na's FY 2007 Funding Agreement, page 2, footnote 2, which
identifies the cost codes and total amounts due under that Agreement).
Based on these assurances from BIA and the terms of FY 2007
agreement with the Secretary, Cheesh-na has engaged contractors to
complete construction of the road project this summer. We have received
our first bill in the amount of $700,000. Meanwhile, when BIA
transferred funding to Cheesh-na this week purportedly pursuant to our
FY 2007 IRR Program Addendum, the amount we received was only
$35,632.06. We have sought clarification from the BIA Division of
Transportation Chief LeRoy Gishi, but have not received a response.
Cheesh-na must receive the full amount of IRR Program funding set
forth in our agreement immediately in order for this critical project
to proceed. Given the extreme urgency of the situation, Don Kashevaroff
has agreed to raise our concerns in his testimony before the Committee.
We urge your assistance in overseeing BIA's proper administration of
its agreement with the Cheesh-na Tribal Council.
Sincerely,
Elaine Sinyon,
Tribal Administrator.
cc: Senator Lisa Murkowski; Cheesh-na Tribal Council.
Attachments
Hobbs, Straus, Dean & Walker, LLP
Washington DC, March 19, 2007
Mr. LeRoy Gishi,
Chief, Division of Transportation,
Bureau of Indian Affairs,
Washington, DC.
Ms. Peggy Exendine,
Transportation Director,
Juneau Area Office,
Bureau of Indian Affairs,
Juneau, AK.
Re: Cheesh-na Tribal Council FY 2003 POO Funds
Dear Mr. Gishi and Ms. Exendine:
This letter is to confirm our telephone conversations regarding the
distribution of road construction funding obligated to the Cheesh-na
Tribal Council (Christochina) (``Cheesh-na'') in FY 2003 will be
distributed in the coming weeks. Based on those conversations, we
understand that roads construction funds in the amount of $814,257
(from FY 2003 Point of Obligation (POO) funds listed below) will be
provided to Cheesh-na when the Bureau of Indian Affairs (BIA)
distributes remaining balances of prior year Indian Reservation Roads
(IRR) Program funds (the ``August distribution'' funds). We understand
that the BIA is currently reconciling accounts and that in the coming
days or weeks, BIA Central Office will distribute those funds to the
BIA Regions, which will then re-allocate those funds to the tribes.
Each of you confirmed in our conversations that the BIA has
established mechanisms and processes so that the amount of funds due to
Cheesh-na from 2003, will be included as part of the funding
distributed to Cheesh-na in FY 2007. We further understand that these
funds will be made available to Cheesh-na under its IRR Addendum to its
self-governance agreement through the Office of Self-Governance. The
amount of FY 2003 funds that will be made available to Cheesh-na in FY
2007 is $814,257. This amount represents the total of two FY 2003
obligations to Cheesh-na for its roads construction project that were
previously identified as follows:
2003 POO Funds: $296,675.00 (E00450/2003/F3109/E0210700/252i)
2003 POO Funds: $517,582.00 (E00450/2003/F3110/E0210700/252i)
Total: $814,257.00
This funding is absolutely necessary for Cheesh-na to carry out its
planned road construction project this year. Cheesh-na looks forward to
receiving these funds as soon as possible. Thank you for your
assistance.
Sincerely,
Hobbs, Straus, Dean & Walker, LLP
By: F. Michael Willis
cc: Ken Reinfeld, OSG
______
Oglala Sioux Tribe--Office of the President
Pine Ridge, SD, July 10, 2007
Hon. Byron L. Dorgan,
Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Re: Indian Reservation Roads (IRR) Funding Being Used For
State And County Road Construction Projects
Honorable Senator Dorgan:
The Oglala Sioux Tribe is writing this letter to inform you of a
funding situation that ultimately reduces the amount of annual
appropriations our Tribe and that the majority of other large lands
based Tribes receive from the Indian Reservation Roads Program for
construction. A very large share of these dollars is going to construct
roads under the jurisdiction of State and County governments.
There was a Final Rule published in the Federal Register on July
19, 2004 for the Indian Reservation Roads (IRR) Program. Inside that
rule 25 CFR Part 170.226 establishes the need for Tribes to expand
their inventories for funding purposes. CFR 25 Part 170.442 specifies
that Tribes, Reservations, BIA, Agency, Region, Congressional District,
State and County roads can be placed on each Tribes inventory. Prior to
Public Law 109-59 Safe, Accountable Flexible, Efficient, Transportation
equity Act--A Legacy for Users (SAFETEA-LU) and 25 CFR, Part 170 there
was an annual 2 percent cap on the amount of added inventory items each
Tribe could claim. This cap no longer exists and Tribes are allowed to
place any number of roads including ``proposed roads that don't even
exist yet'' on their inventories. Since 25 CFR Part 170.442 plays a key
role in allowing Tribes to include any amount of State and County roads
on their IRR inventory, it has proven disastrous for the Oglala Sioux
Tribe and for many other large land base Tribes throughout the country
including the Navajo Nation. In the Great Plains Region alone, we lost
approximately $4 million and are anticipating losing similar amounts
for FY07. This is devastating for our region in terms of funding for
road construction projects.
During Transportation Equity Act of the Twenty First Century (TEA-
21) Tribes divided an annual fund nationally budgeted at $275 million
using a Relative Need Distribution Formula (RNDF). The Oglala's share
of IRR Program funds was at $5,036,000.00. With the passage of SAFETEA-
LU and 25 CFR Part 170 all Tribes should have seen an increase of funds
due to the annual step increase in appropriations from $275 million in
FY04 to $450 million by FY09. This is not the case due to the specific
language in 25 CFR Part 170.442 allowing each Tribe to add State and
Country roads and in effect drastically modify their Relative Need. Our
Tribe has lost nearly $2 million last year and is facing another loss
of approximately the same amount for this year. We were funded at
around $3.1 million for FY06. We are looking at even less numbers for
FY07. For those 2 years the Oglala Sioux Tribe is losing in the
neighborhood of $4 million for road construction. We already have more
than a $66 million backlog for road construction under TEA-21 and since
we are forced to add State and County roads under SAFETEA-LU to our
system as well, we are now facing a $360 million construction backlog.
A very large majority of Tribes all across America are experiencing the
same problem. This can be directly related to an unfair advantage that
some Tribes have taken to update their inventory. I do not wish to
target a specific Tribe or State however data has shown that the
Eastern Oklahoma Tribe has been reaping huge and unfair benefits in
terms of funding from the changes in the most recent Transportation
Bill. They have far exceeded their Relative Need by many times. Eastern
Oklahoma Tribes are undoubtedly financing County and State road
construction projects with a windfall of Indian Reservation Roads
construction funds. These State and County road systems are normally
and traditionally being fully funded through another source. Yet, the
language in SAFETEA-LU and 25 CFR Part 170 allows State and County road
systems to be supplemented with Indian Reservation Roads dollars. The
land base and need within Oklahoma prior to CFR 25 Part 170 and
SAFETEA-LU is extremely small compared to the Oglala Sioux or Standing
Rock Sioux or Rosebud Sioux or Cheyenne River Sioux or the Navajo
Nation. To my knowledge, the Oklahoma Tribes do not have any Indian
Reservation Roads listed on their inventory. In other words, they have
``zero'' miles of IRR roads. But due to the changes in the
Transportation law, it has been said that they are receiving in the
neighborhood of $8 million to construct State and County roads. Nothing
goes to IRR roads because they do not have any IRR roads. If you review
the attachment I have provided, I have highlighted language in PL 109-
59, ``including communities in former Indian reservations in Oklahoma''
and further, ``which the majority of residents are American Indians.''
With that particular language, how does the entire State become
involved? Because we are only talking about ``where the majority of
residents are American Indian.'' the entire State is obviously not made
up of a large community consisting of only American Indians! For
example, are they suggesting that the entire city of Tulsa is made up
of an Indian community? That is very unlikely.
The Great Sioux Nation still recognizes the 1868 Treaty with the
United States where in Article 2 it basically states that everything
west of the east bank of the Missouri River in South Dakota has been
set apart for the absolute and undisturbed use and occupation of Sioux
Tribes. If any Tribes in the Great Sioux Nation laid claim to the FY
2006 road system within the 1868 territory as defined in Article 2 of
that Treaty, they would be potentially increasing their inventories by
incredible amounts. The State of South Dakota was established in 1889.
This was 21 years after the signing of the 1868 Treaty with the Great
Sioux Nation. Which brings up the question of how was South Dakota and
its Counties established within an Indian Territory? Since State
governments do not have jurisdiction on Indian Reservations why are
County governments allowed to exercise authority on Indian
Reservations? This leads to the questions of why do Tribes have to get
certifications from State and County governments in Indian Territory?
If Oklahoma Tribes are claiming the entire State of Oklahoma as Indian
Territory, then why can't the Great Sioux Nation claim all of South
Dakota and increase their road inventories accordingly? This is an
issue that the Tribal Chairmen's Association in the Great Plains Region
should address. Additionally, we are in the middle of adding all the
Mni Wiconi pipe line access roads to the IRR system. As you know this
is the largest pipe line in the world and the Oglala's own it. At my
direction, my Transportation staff is taking the inventory all the way
to Ft. Pierre, SD. Roads leading to drinking water sources are eligible
to be included in the IRR invt(ntory.
On the subject of how to calculate the Cost to Construct (CTC) and
Vehicle Miles Traveled (VMT), in 25 CFR Part 170, Appendix C to Subpart
C(10)(see the entire citation below), contains guidance on how to claim
100 percent CTC and VMT on added inventories.
10. Do all IRR Transportation Facilities in the IRR
Inventory Count at 100 Percent of their CTC and VMT? No. The
CTC and VMT must be computed at the non-Federal share
requirement for matching funds for any transportation facility
that is added to the IRR inventory and is eligible or funding
for construction or reconstruction with Federal funds, other
than Federal Lands Highway program funds.
However, if a facility falls into one or more of the
following categories, then the CTC and VMT factors must be
computed at 100 percent:
(1) The transportation facility was approved, included, and
funded at 100 percent of CTC and VMT in the IRR Inventory for
funding purposes prior to the issuance of these regulations.
(2) The facility is not eligible for funding for
construction or reconstruction with Federal funds, other than
Federal Lands Highway programs funds; or
(3) The facility is eligible for funding for construction or
reconstruction with Federal funds, however, the public
authority responsible for maintenance of the facility provides
certification of maintenance responsibility and its inability
to provide funding for the project.
Initially, there was confusion in the legal interpretation of this
language and most BIA regions were requiring Memorandums of
Understanding (MOU's) between Tribes, States and Counties to increase
the inventory. The Oglala Sioux was one of the Tribes who interpreted
the citation to mean that the Tribes needed certification letters from
States and County's rather that MOU's. Tribes eventually received
clarification to that question through a policy on minimum attachments
letter dated June 15, 2006 and authored by Mr. Ragsdale who is the
Director of the Bureau of Indian Affairs. That letter recognized that
Tribes had an option to enter into MOU's with States and Counties for
an ``Acknowledgement of Public Authority'' but it was not required. The
letter also clarified the language in 25 CFR Part 170, Appendix C to
Subpart C, that Tribes must get a certification letter from States and
Counties acknowledging that the ``public authority responsible for
maintenance of the facility provides certification of maintenance
responsibility and its inability to provide funding for the project.''
The first part of the quotation is optional and the second part
(italicized) is required. Combined with 25 CFR, Part 170.442, this is
where the root of the problem lies. Mr. Ragsdale's interpretation is
correct but the citation is devastating to most Tribes. At the risk of
sounding repetitious, due to this language some Tribes are unfairly
taking advantage of adding State and County roads of their systems
causing an unfair increase in funding for those Tribes and a total
disruption of the Relative Need. Another question that needs to be
answered is why should a Tribe have to get this certification when
State law requires counties to maintain their road system? We have an
issue with Jackson County who refuses to sign certification letters.
This is causing the Oglala's to lose funding because we cannot get this
document (as required in the above citation) placed in a package for
submittal and ultimate approval by BIADOT. Since all county roads are
on the States inventory, we are going to ask the State of South Dakota
to provide the certification letter for the counties and possibly get
around this issue.
The Oglala Sioux Tribe is also questioning BIADOT's interpretation
of counting added road inventories at 20 percent vs. 100 percent when
State and County governments do not sign certifications. In 25 CFR Part
170.444(f) BIA Regional Office certifies the data that was submitted by
the Tribes then forwards it to BIADOT. BIADOT then approves those
submissions before they are included in the National IRR Inventory.
Once again and in the Oglala Sioux Tribes case, Jackson County did not
sign certifications. We submitted data with the Counties road miles
anyway with a letter explaining that the County refused to cooperate.
The BIA Regional office accepted the data and letter then forwarded it
to BIADOT. BIADOT returned the data to the Regional Office as
unacceptable because of the lack of a County Certification letter.
Because BIA Regional Office accepted the data and letter from the
Oglala Sioux Tribe explaining the situation our Tribe should have been
able to count the added County miles as 100 percent CTC or at the very
least at 20 percent because of the language in Appendix C to Subpart C,
which I will briefly cite that CTC and VMT can be counted at the non-
Federal share requirement for matching funds for any transportation
project that is added to the IRR inventory and is eligible or funding
for construction or reconstruction with Federal funds, other than
Federal Lands Highway program funds. The issue to acceptance of the
updated inventory is between BIA Regional Office and BIADOT as the
Tribes data has already been accepted by BIA. BIADOT simply will not
enter the needed data for the Oglala Sioux Tribe into the National IRR
inventory because the County did not submit a certification letter.
This has the direct affect of causing the Oglala's to lose more funding
for road construction.
BIA representatives are anticipating the fluctuations in funding to
level out in a few years as other tribes update their inventories but
some Tribes cannot get their respective counties to sign
certifications. Those Tribes who cannot update their inventories by
adding county roads because they are lacking cooperation with certain
County governments will remain under funded. As mentioned before, even
if certifications were signed, the new inventories have a potential of
being so lopsided that some Tribes will never be able to recover what
they had prior to SAFETEA-LU. The counties who do not sign
certifications are actually holding Tribes IRR funding hostage and
allowing funding, which was more fairly distributed prior to the
enactment of 25 CFR Part 170, to be redistributed elsewhere. Then the
opposite exists for those States and Counties who have already signed
certifications, large amounts of IRR road construction funds are going
to be used to construct State and County roads.
Because of the language in CFR 25 Part 170, and even though all
Tribes update their inventories to their maximum potential, most Tribes
can only sit by and watch as their funding continues to dwindle while
within the Midwest Region and the entire State of Oklahoma takes
advantage of a fund that should rightfully belong to all the Indian
Tribes rather than State and Counties governments.
25 CFR Part 170.155 established the Indian Reservation Roads
Program Coordinating Committee. The committee consists of 12 primary
members from Indian Tribes (one from each region), 12 alternate members
from Indian Tribes and 2 non-voting Federal representatives, one being
from FHWA and the other from BIA. They are basically charged with
providing input and making recommendations on most of the items within
the Final Rule (25 CFR Part 170). A few and I would like to re-iterate
the word ``few,'' of those members are very crafty and are utilizing
the 25 CFR Part 170 to gain a very distinct advantage over other Tribes
in terms of increasing the road inventory to gain additional funds for
their respective State and County road systems. At this point they can
rightfully do so because it is allowed in the law. All members on the
Coordinating Committee can literally be considered experts in the field
of Indian Reservation Roads and Transportation facilities. Which leads
to the age old saying, ``If you put a fox in the henhouse to watch the
hens, who is watching the fox?''
25 CFR Part 170.4 poses the question of ``What is the effect of
this part on existing Tribal rights?'' In (c) of that section the
answer is; ``This part does not terminate or reduce the trust
responsibility of the United States to Tribes or individual Indians.''
The Oglala Sioux Tribe is recommending and requesting a congressional
investigation into the funding of State and County road systems using
Indian Reservation Roads dollars. We desire to expose the very wide and
very negative impact this issue has taken against the majority of large
land based Indian Tribes all across the Nation. We believe that this
law, although it has corrected much of the under-funding of roads for
Tribes, also insidiously diminishes the sovereignty of Tribes by
mandating them to create agreements with States/State entities in order
to receive funding which is a trust responsibility of the Federal
agencies. Our recommendation is to remove the language in 25 CFR Part
170 allowing Tribes to include State and County roads in their
inventories and to immediately remove any and all State and County road
systems that have been placed on the BIA Indian Reservation Road
Inventory under that rule.
If you have any further questions on this subject, please contact
my office.
Sincerely,
John Yellow Bird-Steele,
President, Oglala Sioux Tribe.
cc: Pete Red Tomahawk, Chairman, IRRPCC
______
Prepared Statement of The Gila River Indian Community
The Gila River Indian Community (the ``Community'') desires to
present this statement for the record in the hearing on tribal
transportation issues in Indian Country. As an integral part of
creating, improving and planning transportation routes within
reservation lands, rights-of-way are a significant factor in any
discussion of transportation issues. The Community presents issues of
rights-of-way within the Gila River Indian Reservation
(``Reservation'') that it has encountered.
I. Introduction
The Reservation was established by an Act of Congress in 1859. From
1876 to 1915, seven Executive Orders of the President increased the
size of the Reservation to its current size of 372,022 acres. The
Reservation is homeland to the Akimel O'odham (Pima) and the Pee-Posh
(Maricopa) Tribes. The Reservation is located in south central Arizona,
and is the largest reservation in the Phoenix metropolitan area. The
Reservation land base is split into seven districts that span over two
counties, Maricopa and Pinal. Ninety-four thousand acres of the
Reservation is allotted land.
In 1939, the Community was formally established by adoption of its
own Constitution. Currently, the Community has over 19,000 enrolled
members with approximately 12,000 residing within the Reservation.
Due to the location of the Reservation, the Community is a pivotal
player that the State of Arizona and local governrnents must work with
as transportation routes are planned. The Community is surrounded by
the rapidly growing cities of Maricopa, Casa Grande, Chandler, and
Coolidge. See attached Map. As of July 2006, Pinal County had nearly
300,000 residents, amounting to a 67 percent increase over 6 years. \1\
---------------------------------------------------------------------------
\1\ Morrison Institute for Public Policy, The Future at Pinal:
Making Choices, Making Places 9 (2007), http://www .asu.edu/copp/
morrison/PinalReport.pdf.
---------------------------------------------------------------------------
Pinal County's growth is not expected to slow anytime soon. The
population is projected to reach one million residents in the next
twenty years. \2\ Inevitably, residents of the surrounding communities
must travel through the Reservation, posing a serious and growing
problem for the Community. The Community Council is consistently asked
to respond to overtures from the State of Arizona and local governments
inquiring about the Community's willingness to improve, expand, and
build new roads through the Reservation.
---------------------------------------------------------------------------
\2\ Id.
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Key issues that continually surface include (1) whether a right-of-
way was established for existing paved and unpaved roads; (2) the
ability of the Community to work with the United States and allottees
to obtain rights-of-way over allotted land; (3) budgeting for the time
and additional resources needed to address highly fractionated
allotments; (4) obtaining accurate valuations of rights-of-way over
Reservation lands; and (5) creating a comprehensive Reservation-wide
land use plan that will meet the needs of the Community while
addressing external influences. The Community is in a position to
actively participate in a State-wide transportation planning, however
the Community's position is often jeopardized by these important
issues.
II. The Role of the United States
The Secretary of the Interior (``Secretary'') must approve all
rights-of-way through Indian Country. \3\ To date, the Community is
aware of seventy-three rights-of-way through the Reservation. However,
that does not equate to the number of paved and unpaved thoroughfares
crossing the Reservation. Rights-of-way established prior to 1948 only
required the allottee's consent and the Secretary's signature to secure
a right-of-way over allotted land. The Secretary could independently
grant rights-of-ways over tribal lands without the Community's consent.
\4\
---------------------------------------------------------------------------
\3\ Rights-of-Way Through Indian Lands, 25 U.S.C. Sec. Sec. 311-328
et seq.
\4\ See Rights-of-Way Over Indian Lands, 25 C.F.R. Sec. 256 (1938).
---------------------------------------------------------------------------
Prior to 1997, the Bureau of Indian Affairs (BIA) held the
responsibility for all road inventory, maintenance and construction for
the Community. In 1997, the Community's Department of Transportation
(``GRICDOT'') was formally established. In 2000, under a P.L. 93-638
contract, the Community assumed management and operation of all BIA
road maintenance programs on the Reservation. The divisions of GRICDOT
are: (1) Planning and Rights of Way, (2) Road Construction and
Surveying, (3) Road Maintenance, and (4) Fleet Management.
GRICDOT has assumed the responsibility of establishing rights-of-
way as needed. This includes obtaining consent from the Community as
well as any allottees owning parcels of land the right-of-way will pass
through; however, there are various problems with this process. One
major complication is finding and contacting each allottee owning land
in the planned-project area in order to obtain the requisite consent
for a right-of-way. Incomplete wills add to allotment
fractionalization, which further enhances the difficulty of getting
numerous allottees to agree to a right-of-way and then to agree to
waive compensation. In addition, the BIA does not have an efficient
system for tracking allottees; therefore, GRICDOT must expend countless
resources to get the job done. This complicated process delays road
projects and increases costs over time due to inflation. Moreover,
because BIA funding for right-of-way acquisition is non-existent, these
moneys come out of right-of-way construction funds. Finally, valid
documentation of an established right-of-way is often difficult to find
due to BIA's flawed recordkeeping over the years. Although the
Community is administering existing roads within the Reservation,
GRICDOT is limited in its ability to engineer and plan transportation
systems that are currently proposed to address a growing external
population and its impact on the Community.
III. Rights of Way
In 2005, evidence surfaced of a previously unknown 1933 right-of-
way signed by the First Assistant Secretary to Pinal County. In 1933,
the Pinal County Board of Supervisors desired to construct Signal Peak
Road on the Reservation as a means for farmers to access a major
thoroughfare. The right-of-way straddles land within Pinal County and
the Reservation boundary and consists of allotted and Community land.
The damages to allottee land were deemed nominal; however the United
States waived damages across Community land. In present day, the right-
of-way will no longer be used by farmers but by residents of a soon to
be built 11,000 home subdivision adjacent to the Reservation. A paved
and improved thoroughfare would grant access to an already congested
thoroughfare running through the Reservation.
Rights-of-way granted prior to 1948 without Community involvement
often negatively impact the Community in the present day. First, the
BIA lacks detailed records of existing rights-of-way to provide the
Community with notice. Second, the Community desires a structured
process for determining the status of all rights-of-way; a process that
will allow for consultation between the Community and the United
States, and in turn will streamline the notice and consent process with
allottees when creating, improving, or expanding any right-of-way.
Third, the Community has a strong desire to regulate and participate in
activities that affect the Community's land base regardless whether of
it is Community or allotted lands and suggests Federal resources to
assist in notification and planning a Reservation-wide transportation
system.
IV. Recommendations
The Community desires to protect and wisely utilize its land base.
As a steward of its most precious resource, the Community needs to make
informed and timely decisions regarding land while addressing the
Community's pressing transportation issues. In order to effectively
construct and maintain roads on the Reservation, the Community has to
work within an outdated, incomplete transportation structure. The
Community would like BIA to implement right-of-way reform that includes
the following elements:
A. Comprehensive Right of Way System
The Community encourages BIA to create a comprehensive right-of-way
system that provides current information regarding (1) existing rights-
of-way, including the duration, scope, and transferability, etc.; and
(2) allottees' interests in land, including a system for communicating
with allottees for the purpose of obtaining consent as required in a
timely manner.
B. Records Management
Many rights-of-way that were granted in the distant past conveyed
long term interests to the grantee. In many instances, these rights
were granted for little or no compensation to the tribe or its members.
The records to verify the intent of parties and the extent of the
rights conveyed as expressed in conveyance and supplemental documents
are often non-existent, lost or otherwise unavailable. Even in cases
where documents are available, the Community has to request the
documents and then wait indeterminate periods of time before receiving
anything.
C. Communication
The Community expects written and timely information from BIA
regarding any and all right-of-way issues that could potentially impact
the Community, including, but not limited to:
a) information regarding third parties' interests in rights-of-
way implicating any land within the exterior boundaries of the
Reservation;
b) timely response to the Community's right-of-way inquiries,
and
c) frank, open minded discussions with BIA regarding specific
right-of-way issues.
V. Conclusion
The Community is initiating planning for its long term
transportation needs as well as responding to the transportation needs
of the communities surrounding it. Addressing future transportation
needs requires partnering with other local governments and considering
innovating ways to address transportation needs. The Community is open
to suggestions and discussion regarding right-of-way issues, or any
transportation issue, affecting the Reservation's land base.
Thank you for the opportunity to submit comments on this highly
complex subject. The Community looks forward to collaborating with
Federal, state, and local governments on these significant issues.
______
Prepared Statement of JoAnn Polston, First Chief, Healy Lake
Traditional Council
I. Introduction
Mr. Chairman, and Members of the Committee on Indian Affairs. My
name is JoAnn Polston. I am the First Chief of the Healy Lake
Traditional Council, and a member of the MENDAS CHA AG Tribe in Alaska.
I have served on the Tribal Council for over 10 years, and I was
elected First Chief in October 2005. I work closely with the Healy Lake
Transportation Department on issues pertaining to transportation within
the Council's jurisdiction. I am also the alternate on the Indian
Reservations Roads Program Coordinating Committee for the Alaska
Region.
I thank the Committee for giving the MENDAS CHA AG Tribe an
opportunity to share some of its concerns about transportation issues
affecting its lands and members. While there have been many
improvements in recent years, there is still much work to be done. My
testimony will be focused on four specific topics.
II. Delays in the TIP Approval Process Impact Road Construction
Projects
The Tribe would like to see the Transportation Improvement Program
(TIP) approval process reviewed and streamlined so that projects can be
approved and put on the TIP in a timely manner. I can provide an
example of how delay in getting routes approved can significantly
impact a project.
In August 2006, the Healy Lake Traditional Council entered into a
Memorandum of Understanding (MOU) with the Alaska Department of
Transportation and Public Facilities for the design and construction of
a road to connect the Village of Healy Lake to the State of Alaska road
system. Although the MOU was executed almost a year ago, the project
still has not been approved on the Current TIP. If the Tribe had to
rely on its ``tribal share'' of Indian Reservation Roads (IRR) funds to
fund construction of this project; the Tribe would be unable to use
those funds until the road was on the TIP. Fortunately for the Healy
Lake Traditional Council, the funds for this project were part of a
separate protected section of the SAFETEA-LU appropriation, and the
Tribe has been able to proceed.
Other Tribes have not been as fortunate, and the length of time it
takes for projects to be approved under TIP prevents many Tribes from
moving forward with transportation projects. Road construction costs
are rising at unprecedented rates; when Tribes are forced to postpone
projects the purchasing power of their already limited IRR Program
funds decreases. Moreover, a simple delay in the TIP approval process
can have a profound impact on transportation improvements, impacting
not only Tribal members' safety, but also the economic opportunities in
villages and communities.
III. Management of the Alaska Tribal Transportation Assistance Program
Was Changed Without Tribal Consultation
The Federal Highway Administration (FHWA) provides assistance to
Tribes through Tribal Transportation Assistance Programs (TTAP). The
TTAPs provide technical assistance to Tribal transportation officials
and work with these officials to increase the capacity of Tribal
governments to administer transportation programs. The TTAPs provide
important training resources for Tribal transportation officials and
serve as information clearing houses.
Until very recently, the Tribal Transportation Assistance Program
in Alaska (AK TTAP) was managed under a cooperative agreement between
the Federal Highway Administration (FHWA) and the Eastern Washington
University (EWU). Without consulting with Alaska Tribes, the FHWA
recently re-competed the Alaska TTAP and entered into a cooperative
agreement with the University of Alaska--Fairbanks (UAF).
We are concerned about this change for two reasons.
First, there was no Tribal consultation during the process. The
FHWA did not seek input from Tribes concerning their transportation
needs, their satisfaction with the services provided by the EWU TTAP,
or their long-term goals for their transportation programs. As a
result, Alaska tribes have no assurances that the UAF understands or
will be responsive to the needs of Tribal governments. For instance, we
understand that UAF intends to focus on ``on-the-ground training'' for
individuals in equipment operation, road maintenance, dust control, and
airstrip maintenance. This approach is a departure from that taken by
the EWU TTAP and does not correspond with the current needs of Alaska
Tribal governments. The highest priority for the AK TTAP should
continue to be (1) providing training and a clearinghouse for
information about contracting and compacting and all aspects of the IRR
Program; and (2) for direct service Tribes, educating them on how to
have the BIA accomplish the Tribe's goals. Tribes in Alaska simply do
not need technical ``on-the-ground'' training at this stage in the
process.
Second, we are also concerned that FHWA, in selecting UAF to host
the AKTTAP, did not take into account the fact that the Alaska Supreme
Court has ruled in other circumstances that operating programs for
Alaska Natives violates the Alaska Constitution equal protection
standards. We are therefore concerned about whether UAF, a State-run
institution, can operate an ``Indian'' program such as TTAP. The result
could be a shift in services away from tribal governments to services
that support State Department of Transportation projects or the waste
of valuable resources defending a lawsuit in State Court. This would
defeat the purpose of the TTAP program.
Given that UAF has already received the contract with FHWA, we will
work with UAF to receive transportation assistance. However, we note
that the award of the contract without Tribal consultation violates
longstanding DOT policy as stated in DOT Order 5301.1 (November 16,
1999) to ``consult with Indian tribes before taking any actions that
may significantly or uniquely affect them.'' Had the DOT complied with
its own policy and consulted with Alaska Tribes before awarding (or
even soliciting) the TTAP contract, Tribes would have had the
opportunity to describe their needs and express their concerns
regarding a State-run TTAP program before the FHWA made its decision.
IV. Tribes are Not Receiving IRR Funding in a Timely Manner
Tribes must be able to count on IRR Program funds being available
in a timely manner. Delays in distributing IRR Program funds to the
Alaska Region and delays in those funds getting distributed to Tribes
can prevent Tribes from designing and constructing projects. Timely
access to funding is especially critical in Alaska, because the
construction season is often 5 months and sometimes less.
For instance, Alaska Tribes only recently received the ``notice of
availability of funds'' in Alaska associated with their Fiscal Year
2007 tribal shares. The notices came to Tribes within the past few
weeks, with instructions to Tribes to get their budgets for these
amounts prepared and sent in to the Alaska Region. Tribes are told that
funds will be swept up and returned to FHWA by August 10, 2007. In
other words, Tribal transportation departments are given a few short
weeks in the height of the construction season to prepare and submit
proposed budgets or else they risk their tribal shares being swept up
for another year.
Given the short construction season, untimely receipt IRR Program
funds can result in a project not being started 1 year as planned and
being rescheduled for the next construction season. The cost of labor,
materials, and fuel increase each year, increasing the cost of delayed
projects, and requiring changes to project estimates and budgets
(causing additional engineer costs).
Timely distribution of funds to the Alaska Region and then to
Tribes will allow Tribes to better prepare its projects, and in the end
will save on project costs.
V. Additional Funds are Needed for Road Maintenance
Currently, the only source of funding available to most Alaska
Tribes for road maintenance is money received through the IRR Program.
Tribes can use up to 25 percent of their tribal share for road
maintenance. Of course, if these funds are used for maintenance, they
cannot be used on other needs, such as designing and constructing safer
roads.
Another source of maintenance funding is the BIA Road Maintenance
Program. The BIA has taken the position that it is only obligated to
maintain facilities owned by the BIA. Department of the Interior Indian
Affairs Budget Justifications Fiscal Year 2008 at IA-CED-4. Because
there is only one reservation in Alaska, there are very few BIA-owned
transportation facilities. As a result, the entire Alaska region is
only allocated a very small share of the total BIA Road Maintenance
funds. Alaska has 40 percent of the Nation's Tribes, and it is a very
large state with many unsafe roads. Very few Alaska Tribes have access
to the BIA Road Maintenance Program funds.
The BIA's policy is not in accord with the regulations that
implement the BIA Road Maintenance Program. Under these regulations BIA
Road Maintenance funds may be used to maintain not only BIA and
Tribally-owned transportation facilities, but may also be used to
maintain non-BIA facilities, ``if the tribe served by the facility
feels that maintenance is required to ensure public health, safety, and
economy, and if the tribe executes an agreement with the owning public
authority within available funding.'' 25 C.F.R. Sec. 170.803(a)(2). We
ask that the Committee work with us to ensure that the BIA follows its
own regulations and allocates funding to the Alaska region on par with
the allocations received by the other BIA regions.
We join the Tribes in the rest of the lower forty-eight States in
advocating for a significant increase in funding for the BIA Road
Maintenance Program. These funds are necessary not merely to safeguard
the Federal investment in road construction; more importantly, to
safeguard our lives and the lives of future generations. We stress,
however, that these funds must be available to Alaska Tribes--as
required by regulations--as well as to Tribes with facilities that are
owned by the BIA.
VI. Conclusion
Thank you for allowing the MENDAS CHA AG Tribe to present testimony
to this Committee. We appreciate the opportunity to share our concerns
about transportation issues in Alaska and the effect of unmet
transportation needs on Alaska Natives and all Tribes.
______
Prepared Statement of The Ho-Chunk Nation
Introduction
The Ho-Chunk Nation of Wisconsin would like to thank the Committee
for the opportunity to voice its opinion regarding the Indian
Reservation Roads (IRR) Program. The Nation is relatively new in its
experience with the IRR Program. It has only been within the last 2
years that the Nation has begun to realize any significant funding from
the program and the corresponding benefits. With the assistance from
this program, the Ho-Chunk Nation has been able to provide tangible
solutions to safety and access problems that have plagued tribal
members for many years.
The Nation has only recently been able to more fully participate in
the IRR Program because of the relatively recent changes in Federal
Code governing this program. These changes have allowed historically
underserved tribes to finally access greatly needed funding.
The Ho-Chunk Nation is one of the few tribes in the contiguous 48
states that does not have a single situs reservation, and for purposes
of the IRR Program is categorized as a tribe without defined
boundaries. This is significant because only until recently, only roads
within a reservation were able to receive funding. These changes
rectified an inherent discrimination in the program by recognizing that
our tribal members faced the same transportation challenges as those
who live on a reservation.
The Nation is grateful for its ability to participate in the
program and would like to address two issues for consideration by the
Committee. We would like to encourage the Committee to first, increase
overall funding for the program upon reauthorization, and second, do
what it can to maintain the current funding formula at least until all
tribes have updated their road inventories.
Overall Funding
As much of the other testimony has pointed out, funding for
transportation construction needs in Indian country is still
inadequate. The Nation fully supports the recommendation of Mr. Pete
Red Tomahawk regarding increasing the funding for the IRR Program by at
least $25 million annually in the next highway reauthorization bill.
Not only are construction costs rising, but as more tribes update
their individual inventories, more miles will be added to the overall
inventory. In fact, thousands of miles of roads have been added to the
inventory in recent years. This has reduced some tribe's relative share
of funding and created a certain level of animosity between tribes. All
tribes have legitimate transportation needs, and deserve adequate
funding. It is imperative to ensure adequate funding levels for the
program in order to avoid this very counterproductive competition for
scarce resources.
Funding Formula
The Ho-Chunk Nation agrees with the position of the Bureau of
Indian Affairs, as stated in Mr. Gidner's testimony, that there should
be no changes to the current funding formula until all tribes have
significantly updated their inventory. The IRR Coordinating Committee
has submitted recommendations for modifications of the funding formula
to the Secretary. These recommendations would be devastating to a
number of tribes in the Midwest region. The Nation believes that once
tribes update their inventories, any perceived inequities will self-
correct.
The Nation believes the formula should not be changed for the
following reasons:
I.) The IRR Program Is Working Just as Congress Intended it to Work
Beginning with the passage of the Transportation Equity Act for the
21st Century (TEA-21) in 1998, Congress has modified the IRR Program so
that the funding distribution would balance the interests of all tribes
and enable all tribes to participate in the program. In TEA-21,
Congress changed the allocation method and included more roads eligible
for funding. The old funding formula was changed in order to include
smaller and historically underserved tribes. The inventory of roads was
expanded to include tribally owned public roads and other IRR eligible
transportation facilities identified by tribes to more accurately
measure transportation assistance needs and to match the projects on
which IRR Program funding is spent.
More recently, Congress passed a law that defined what roads are
eligible for inclusion in the IRR Program, clearly identifying an
expansion of the inventory. Under the Safe, Accountable, Flexible, and
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
Congress added language to 23 U.S.C. Sec. 202 to include:
(IV) community streets or bridges within the exterior boundary
of Indian reservations . . . and other recognized Indian
communities . . .
(V) primary access routes proposed by tribal governments,
including roads between villages, . . .
This expansion of the roads intended to be included in the IRR
Program is punctuated by further language from this subsection that
directs the Secretary of the DOT that this definition is just a
``minimum'' of what is to be included. Language in the section goes on
to say that:
(iv) Nothing in this subparagraph shall preclude the Secretary
from including additional transportation facilities that are
eligible for funding under the Indian reservation roads program
in the inventory used for the national funding allocation if
such additional facilities are included in the inventory in a
uniform and consistent manner nationally.
The Nation believes that Congress clearly intended the IRR Program
to include more roads that are eligible for funding in order to reflect
what the true transportation needs of Indian tribal members are. It is
the responsibility of the Department of Interior along with the
Department of Transportation to carry out the wishes of policy makers
as codified by a law, passed by both houses of Congress, and signed by
the President of the United States. The proposed modifications to the
Federal regulations currently being contemplated by the IRR Program
Coordinating Committee severely restrict the types and mileage of roads
in the program. This is counter to the express intent as stated by
Congress and should not be adopted.
II.)Tribes Have Simply Followed the Rules and Should Not Be Penalized
for It
The Federal Highway Administration's own ``Planning Glossary''
updated December 1, 2006, includes an operational definition of IRR
Inventory as:
An inventory of roads which meet the following criteria: . . .
(b) public roads that provide access to lands, to groups,
villages, and communities in which the majority of residences
are Indian, (c) public roads that serve Indian lands not within
reservation boundaries, and (d) public roads that serve
recognized Indian groups, villages, and isolated communities
not located within a reservation.
The Ho-Chunk Nation has been instructed by the Federal Government
that this is the rule to follow with regards to what roads can be
included in the IRR Program. The Ho-Chunk Nation has been very
successful at getting roads included into the eligible inventory. Some
of the proposed regulation modifications being considered by the IRR
Program Coordinating Committee would retroactively prohibit roads
already approved as eligible from receiving any funding. This would be
a travesty. It would be completely unfair to the Ho-Chunk Nation and
other tribes to have gone through all the required work only to have
roads pulled from consideration for funding. Those modifications must
not be adopted.
Conclusion
The Nation would again like to thank the Committee for holding this
hearing and for the opportunity to express our opinion on these issues.
We look forward to working with the Committee over the next few years
as we all try to address the major transportation needs of tribes.
______
Prepared Statement of C. John Healy, Sr., President/Transportation
Director, Fort Belknap Indian Community
I. Introduction
Mr. Chairman and Members of the Committee on Indian Affairs. My
name is John Healy. I am the Transportation Director for the Fort
Belknap Indian Community located in North Central Montana. I am also
the recently elected President of the Intertribal Transportation
Association (ITA), I am also on the Advisory Board for the Northern
Plains Tribal Technical Assistance Program which represents 26 Tribes
in North Dakota, South Dakota, Wyoming, Montana, and Nebraska. I was
also on the joint Tribal-Federal Transportation Equity Act for the 21st
Century (TEA-21) Negotiated Rulemaking Committee which drafted the
BIA's regulations for the IRR Program before they were finalized by the
Department of the Interior. I have worked in the Tribal transportation
field for over 13 years.
On behalf of the ITA and member tribes I would like to submit the
following comments.
The original concept of ITA was to represent member tribes in the
Transportation Area on a National Level. ITA provides a network and
forum to discuss vital tribal transportation issues, this is even more
important now under SAFETEA-LU.
The Fort Belknap Indian Community Council which is the governing
body for the Gros Ventre and Assiniboine Nations on the Fort Belknap
Indian Reservation in Montana. The Fort Belknap Indian Reservation is
located in the north central part of Montana. It falls approximately
forty miles south of the Canadian border from the Providence of
Saskatchewan, and twenty miles north of the Missouri River from
Robinson Bridge. It is bordered on the east and west by survey lines
established when the reservation was created. The reservation
encompasses an area of 724,147.6 acres; it is rectangular in shape with
an average width of 28 miles wide and 40 miles in length, and has an
enrolled membership of 5,256 people. Our on reservation population is
approximately 4,000, with approximately 500 miles of Indian Reservation
Roads.
The Fort Belknap Indian Community Council and our Chairperson,
Julia Doney, recognize the importance of transportation infrastructure
as a key to our Tribe's future economic and social well being.
II. Key Recommendations to Improve Tribal Transportation Policies
Nearly 20 years ago, this Committee introduced legislation to
overhaul the Indian Self-Determination Act. The legislation, which
became P.L. 100-472, recognized the growing capability of Tribes to
assume control over Federal programs. The Indian Self-Determination Act
empowered Indian Tribes by transferring control to the Tribes and
providing them the financial resources to succeed. The same thing must
happen in the field of transportation. What this Committee said in 1987
is true in 2007:
``The conditions for successful economic development on Indian
lands are essentially the same as for any other predominantly
rural community. There must be community stability, including
adequate law enforcement and judicial systems and basic human
services. There must be adequate infrastructure including
roads, safe water and waste disposal systems, and power and
communications utilities. When these systems are in place,
Tribes are in the best position to implement economic
development plans, taking into account the available natural
resources, labor force, financial resources and markets.'' \1\
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\1\ S. Rep. No. 100-274, 100th Cong., 1st Sess., p. 4.
Our key recommendations to Congress and the Federal agencies to
improve transportation policies in Indian country generally, and for
the IRR Program in particular, which I elaborate upon more fully in my
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testimony, are as follows:
1. Fund the IRR Program for the next reauthorization in
installments that increase annually by at least $25 million
from $475 million in FY 2010 to $600 million in FY 2015, and
restore the obligation limitation deduction exemption that
existed for the IRR Program under the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA); increase funding
for the IRR Bridge Program from $14 million to $50 million in
the next reauthorization with increases of at least $10 million
annually;
2. Increase funding for the BIA Road Maintenance Program to at
least $150 million annually to promote traffic safety and to
ensure that the Federal and Tribal investment in transportation
infrastructure is maintained;
3. Enforce the statutory requirement in SAFETEA-LU which
mandates that the BIA must make IRR Program funds ``immediately
available'' for the use of Indian Tribes within 30 days of the
BIA's receipt of the funds from the FHWA;
4. Simplify the award process by which Federal transportation
funds are distributed to Indian Tribes by creating uniform
grant eligibility, application, and administration criteria;
5. Develop model funding agreements for use by the Department
of the Interior and the Department of Transportation to
facilitate the efficient transfer of transportation funding and
program authority to Indian Tribes;
6. Insist that the BIA and FHWA complete the comprehensive
national transportation facility inventory update authorized in
SAFETEA-LU to properly document all Tribal transportation
facilities and to protect the integrity of the IRR Program
funding formula;
7. Encourage the President to fill the position of Deputy
Assistant Secretary for Tribal Government Affairs established
under SAFETEA-LU;
8. Increase the number of Department of Transportation programs
which Tribes may participate in as direct funding recipients
from the Federal Government rather than as sub-recipients
through the States (e.g., Safe Routes to Schools Program, High
Risk Rural Roads Program, and the Highways for Life Program);
9. Establish a Federal Lands Highways Safety Program for Indian
Reservation Roads, establish a Tribal set aside for the High
Risk Rural Road Program, and increase funding for the Federal
Transit Administration's (FTA) Tribal Transit Grant Program to
$50 million annually;
10. Increase funding to the successful Tribal Transportation
Assistance Programs (TTAPs) to at least $2.5 million annually
to increase technical training and promote awareness in Indian
country of ``best practices'' in transportation planning,
design, construction, maintenance, and highway safety measures;
11. Promote the use of innovative financing techniques in
standard Indian Self-Determination contracts and self-
governance compacts to provide Tribal governments with better
tools to reduce their road construction backlog; and
12. Carry out right-of-way reform in Indian country to reduce
costs and expedite the design, construction and reconstruction
of Tribal roads and bridges.
The Indian Reservation Roads Program is predominantly a rural roads
program. Congress should invest in highway and surface transportation
projects in rural areas as well as metropolitan areas. If rural America
and Indian country are to prosper, there must be rural connectivity and
reliable access to the national transportation system.
III. Tribal Transportation Successes
Indian Tribes have achieved many successes in the transportation
field over the last several years. More than ever before, Tribes are
working in partnership with local government and State departments of
transportation on mutually beneficial projects. With the enactment of
SAFETEA-LU, Tribes are working on a government-to-government basis with
the Federal Highway Administration (FHWA) and the BIA to improve
transportation systems in Indian country. Indian Tribes have:
taken greater control of transportation programs: five
Indian Tribes, negotiated historic IRR Program and funding
agreements with FHWA, as authorized under SAFETEA-LU, to assume
the Secretary of the Interior's duties for the IRR Program;
assumed the authority to approve PS&E (plans, specification
& estimate) packages, thereby maintaining better control over
construction scheduling and cost;
used the authority under SAFETEA-LU to allocate up to 25
percent of their annual IRR Program allocation for road
maintenance needs to maintain Tribal infrastructure built with
IRR Program funds;
witnessed the joint Federal-Tribal initiation of SAFETEA-
LU's Tribal Transit Grant Program which was a model of
government-to-government relations. The Federal Transit
Administration (FTA) consulted with Indian Tribes, responded
favorably to Tribal recommendations, received applications from
nearly 100 Indian Tribes, and awarded over 60 transit grants to
eligible Tribal recipients in FY 2007;
collaborated with Members of Congress and FHWA Administrator
Capka to successfully reverse an FHWA policy that would have
prevented Tribes from being eligible subbrecipients of SAFETEA-
LU's Safe Routes to Schools Program grants. Tribal access to
these funds will permit Tribes to contract with States to
promote, develop and improve safe walking and bike routes to
schools for elementary and middle-school children;
collaborated with States on comprehensive highway safety and
transportation and land use plans, worked on cooperative
ventures to improve traffic crash reporting on Indian
reservations; and jointly worked on construction, employment
and materials testing (Eastern Shoshone and Northern Arapaho
Tribes and Wyoming DOT);
partnered with State DOTs on IRR Program highway projects
funded through the Public Lands Highway Discretionary Grant
Program which brings additional capital to Indian country by
financing projects that otherwise could not be built by Tribal
governments from other funding sources;
instituted safety measures such as the child restraints and
reduced infant and child deaths, cutting these rates
dramatically; and
brought third-party lenders to Indian country to help Tribes
finance road construction projects which have saved Tribes
money that would otherwise be consumed by inflation and
additional mobilization expenses.
Indian Tribes celebrate these successes, and they want to see them
repeated throughout the country. These examples can serve as ``best
practices'' in transportation planning and government-to-government
cooperation. Tribal governments are better positioned today to tackle
problem areas in Tribal transportation than ever before, and they can
save lives by intelligent planning, better design, implementing highway
safety programs and conducting regular road maintenance and periodic
road safety audits.
We just need adequate resources and sensible Federal transportation
laws, regulations, and policies which aid, rather than hinder us, in
getting the job done.
IV. Indian Reservation Roads Are Not Safe Roads
Despite this progress, we need Congress and the Administration to
partner with Tribal governments to dramatically reduce highway injuries
and fatalities that plague Indian communities at rates several times
above the national average. We must do more to keep our children safe
when they walk to school, ride a bus, or jump into their parents' cars
and trucks. We must educate them early to buckle up and not to drink
and drive so that when it is their turn to get behind the wheel, they
will be responsible drivers. Tribal communities must also change bad
behaviors and set a good example for our youth.
Congress and the Administration must also do their parts. Tribes
are struggling to find the funds necessary to meet the tremendous
transportation needs in Indian Country. Congress and the Administration
must recognize that Indian Tribes have the most rudimentary
transportation infrastructure in the country and lack the funds needed
to maintain roadways in a safe condition. Tribal transportation
programs have too few personnel to attend to required activities. \2\
Indian Tribes should be treated as equal partners. The significant
progress Tribes have made in the last two decades to assume direct
responsibility for their transportation systems should be applauded and
rewarded by giving Tribal governments the financial resources they need
to build and maintain safe roads and save lives. Transportation
planning, design, construction, and maintenance are not occasional
occurrences, and Tribal governments must have the resources they need
to carry out this core governmental function. No one else can do it
better than the Tribes themselves.
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\2\ ``Transportation Planning on Tribal Lands,'' Melissa Savage,
National Conference of State Legislatures, August 2006, p. 1.
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Adequate funding levels are needed if we are to design safer roads
with features such as guard rails, rumble strips, clearly visible
signs, reflective markers, and wide, level shoulders. We must increase
law enforcement patrols to enforce traffic laws and respond to
accidents more quickly. We must provide adequate Emergency Medical
Services and associated medical facilities so that prompt medial
assistance is available to the injured within the critical ``golden
hour'' after an accident. And we must adequately maintain routes in
Indian country so that poor road maintenance does not continue to be a
major contributing factor to traffic accidents in Indian country. Poor
road maintenance is a silent killer that preys on the distracted
mother, the sleep-deprived father, the inexperienced son or daughter,
and the aunt or uncle who drive while impaired.
A. Grim Statistics
Our future goals, for safe, well maintained streets are clear, but
the present reflects a grim reality. Native Americans suffer injury and
death driving and walking along reservation roadways at rates far above
the national average.
Motor vehicle injuries are the leading cause of death for
Native Americans ages 1-34, and the third leading cause overall
for Native Americans; \3\
---------------------------------------------------------------------------
\3\ ``Safety Belt Use Estimate for Native American Tribal
Reservations,'' National Highway Traffic Safety Administration, DOT HS
809 921, Final Report, October 2005, p. 1.
The motor vehicle death rate for Native Americans is nearly
twice as high as other races; \4\ motor vehicle crashes were
the leading cause of death among Native Americans age 1 to 19,
and the Aberdeen, Billings, and Navajo Areas had motor vehicle-
related death rates at least three times greater than the
national rates; \5\
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\4\ Id.
\5\ Center for Disease Control, Injury Center, Atlas of Injury
Mortality Among American Indian and Alaska Native Children and Youth,
1989-1998, Executive Summary (www.cdc.gov/ncipc/pub-res/
American_Indian_Injury_Atlas/05Summary.htm).
Native Americans in South Dakota are three times more likely
to be killed in a motor vehicle accidents than the rest the of
State's non-Native population; from 2001 to 2005, over 25
percent of individuals who lost their lives in traffic
accidents in South Dakota were Native American even though
Native Americans comprise only 8.3 percent of the State's
population; \6\
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\6\ ``Improving Motor Vehicle Crash Reporting on Nine South Dakota
Indian Reservations,'' South Dakota Department of Transportation, June
2007.
The South Dakota Department of Transportation (SDDOT),
working with ICF International, Inc., Interstate Engineering,
Inc., and the State's Indian Tribes, in a recently published
report, found that 737 accidents (or 64 percent of all motor
vehicle accidents) on nine reservations in South Dakota in 2005
were not reported; \7\
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\7\ Id.
123 North Dakotans were killed in traffic accidents in 2005,
an increase of 23 percent over 2004; 4,360 North Dakotans were
injured. Eighty-eight percent of the fatal accidents in North
Dakota occurred in rural areas (nearly 9 out of every 10
---------------------------------------------------------------------------
fatalities);
According to estimates by the National Safety Council, the
economic cost in 2005 for each fatality in terms of lost wages,
medical expenses, administrative expenses, motor vehicle and
property damage, and employer costs, exceeded $1.14 million for
each life lost and over $50,000 for every person injured. In
2005, for North Dakota alone, those figures translate to a cost
of nearly $360 million for the State's 123 traffic fatalities
($140.2 million) and 4,360 traffic injuries ($218 million); \8\
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\8\ ``North Dakota Vehicle Crash Facts for 2005,'' North Dakota
Department of Transportation, Crash Facts (www.nd.gov/dot/dlts.html).
5,962 fatal motor vehicle crashes were reported on
reservation roads between 1975 and 2002 with 7,093 lives lost.
The trend is on the increase, up nearly 25 percent to over 284
lives lost per year in the last 5 years of study; \9\
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\9\ ``Fatal Motor Vehicle Crashes on Indian Reservations 1975-
2002,'' National Center for Statistical Analysis, National Highway
Traffic Safety Administration, DOT HS 809 727, Technical Report, April
2004, p. 1.
-- 76 percent of the fatalities were not seat belt or child
safety seat restrained compared to 68 percent nationally; \10\
---------------------------------------------------------------------------
\10\ Id.
-- Since 1982, 65 percent of fatal crashes occurring on
reservations were alcohol related compared to 47 percent
nationwide; \11\
---------------------------------------------------------------------------
\11\ Id., p. 2.
According to information presented by the Michigan Tribal
Technical Assistance Program (Michigan Technological
University), nearly three-quarters (73 percent) of Native
American children under age 5 who died in traffic accidents
were not in a child safety seat. Less than 7 percent were
wearing a seat belt. More than half of these fatalities could
have been prevented if these children had been restrained; \12\
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\12\ See ``Race and Ethnicity in Fatal Motor Vehicle Traffic
Crashes 1999-2004,'' National Center for Statistics & Analysis, DOT HS
809 956, Technical Report, May 2006, p. 14.
NHTSA data shows that approximately 3 out of every 4
fatalities on Indian reservations were not restrained at the
time of the motor vehicle accident. In 2002, only 16 percent of
motor vehicle fatalities on reservations were restrained; \13\
and
---------------------------------------------------------------------------
\13\ ``Safety Belt Use Estimate for Native American Tribal
Reservations,'' NHTSA, DOT HS 809 921, October 2005, p. 1.
American Indians have the highest rates of pedestrian injury
and death per capita of any racial or ethnic group in the
United States. \14\
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\14\ ``Pedestrian Safety in Native America,'' FHWA-SA-04-007
Technical Report, September 2004.
These statistics are shocking and bear witness to the consequences
of maintaining the status quo concerning Federal Tribal transportation
policies. I am troubled by the disparity between national traffic
safety statistics and the statistics coming out of Indian country.
According to the National Highway Traffic Safety Administration
(NHTSA): ``The Department has made transportation safety its highest
priority. The Secretary has mandated an ambitious DOT-wide safety goal
to reduce the traffic fatality rate to no more than 1 fatality per 100
million vehicle miles traveled (VMT) by the end of 2008.''
We have over 11 million VMT in the IRR Program inventory, yet the
average number of Native Americans killed in motor vehicle accidents
annually throughout NHTSA's 28-year study was 213. While the number of
fatal crashes in the Nation during the same period declined 2.2
percent, the number of fatal motor vehicle crashes per year on Indian
reservations increased 52.5 percent. \15\
---------------------------------------------------------------------------
\15\ ``Fatal Motor Vehicle Crashes on Indian Reservations 1975-
2002,'' p. 2.
---------------------------------------------------------------------------
If Tribal governments, the Departments of the Interior and
Transportation, and State DOTs are to reverse the traffic fatality
rates among Native Americans, Congress will need to direct more
resources to the many factors that contribute to highway fatalities
than are presently available. Many traffic accidents that occur on
reservation roads can be prevented through application of the four
``Es'':
1. Education;
2. Enforcement;
3. Engineering; and
4. Emergency Medical Services.
B. Invest in Prevention
IfI leave you with one message today, Mr. Chairman, it is
``prevention.'' As much as I wish it, Congress will not appropriate the
billions of dollars needed to redress all the unmet transportation
needs in Indian country in next year's appropriations acts. But I am
asking Congress to identify and fund those preventative measures that
Federal, State and Tribal governments can take to reverse the
consequences of years of neglect of Tribal transportation
infrastructure, as well as to help us curb the societal behaviors which
contribute to making Indian reservation roads the most dangerous roads
in America.
But it must be a combination of resources to reconstruct and repair
unsafe roads, provide law enforcement, emergency medical services, and
educate Native American communities to make highway safety a priority.
Anyone component alone, without the support of the other components,
will not be as effective.
I speak from experience regarding the damage that traffic
fatalities cause to Tribal families. My brother Jay, was killed 7 years
ago in an automobile accident on the Reservation.
Specific recommendations to improve the delivery of transportation
services in Indian country.
V. Recommendations to Improve Federal Transportation Policies in Indian
Country
Tribes are assuming greater responsibility for transportation
planning, design, construction and maintenance. TEA-21, SAFETEA-LU, and
the IRR Program regulations have created additional opportunities for
Indian Tribes to interact with State Departments of Transportation on
mutually beneficial transportation projects, to negotiate road
maintenance agreements with State governments that prolong the useful
life of IRR-financed routes without the approval of the Interior
Secretary, to conduct long range transportation planning, hire their
own engineers to finalize PS&E packages, and consult with Metropolitan
Planning Organizations and Regional Planning Organizations on long-term
transportation planning goals. Mr. Chairman, we must encourage these
partnerships so that consultation is the norm and all governments work
to achieve mutually agreed-upon transportation goals. This can be the
future of the Indian Reservation Roads Program if Congress and the
Administration will take the following actions:
1. Increase Funding for the IRR Program in the Next Highway
Reauthorization Bill to Meet Tribal Transportation Needs of the
21st Century
The backlog of unmet transportation construction needs in Indian
country is in the tens of billions of dollars. It hinders economic
development, education, and the delivery of housing and health care to
millions of Native Americans who reside on Indian reservations simply
because it raises the cost of doing business on Indian reservations.
Infrastructure should be a Tribal resource, but it is not. It is a
hazard.
It is not exceptional for Indian Tribes to operate one- and two-
person transportation departments. At Fort Belknap, myself and my
Transportation Planner comprise the entire Transportation Department.
While State Departments of Transportation, city and county governments
and Metropolitan Planning Organizations (MPOs) are staffed with
engineers and other professionals to plan transportation projects and
work with stakeholders to prioritize transportation projects, Tribal
governments do not have comparable resources to operate complimentary
transportation programs. \16\ Until the Federal agencies request and
Congress appropriates more resources, Tribal governments will always be
playing ``catch up'' with their State and local government
counterparts. Indian country cannot be expected to rectify our physical
transportation infrastructure needs if we do not also have the
financial resources to properly staff and operate Tribal government
departments to be capable of coordinating with our Federal, State and
local government counterparts.
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\16\ National Conference of State Legislatures, p. 2.
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According to data compiled by the Associated General Contractors of
America (AGC), since 2004 the construction industry has been hit by a
series of significant price increases impacting a variety of basic
construction materials. It was AGC's estimate that a ``realistic
inflation target for construction materials appears to be 6-8 percent,
with periods of 10 percent increases quite possible.'' \17\ These cost
increases outpaced consumer and producer price indices significantly.
According to the AGC report, for the 12 months ending August 2006, the
cost of inputs for highway and street construction was up 13.8 percent,
the producer price index (PPI) for ``other heavy construction'' was up
10.3 percent, and the index for non-residential buildings was up 8
percent. \18\ The report noted that: ``The highway construction index
is driven to a greater degree than the building construction indexes by
the cost of steel bars . . . and plates (for bridges), ready-mixed
concrete, asphalt, and diesel fuel, all of which have experienced
double-digit cost increases in the past 12 months.'' \19\
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\17\ ``AGC's Construction Inflation Alert,'' Reported by AGC Chief
Economist Ken Simonson, September 2006, http://www.agcak.org/akancasn/
doc.nsf/files/7DBB5CEFBE545B13872571 FF0080B299/$file/
AGCsConstructionInflationAlert.pdf
\18\ Id., p. 2
\19\ Id.
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Congress authorized $450 million for the IRR Program for FY 2009.
If Tribes are to maintain the positive gains made in TEA-21 and
SAFETEA-LU and keep up with construction inflation which is running
into double digits in many BIA Regions, we respectfully request that
Congress authorize funding increases to the IRR Program in the next
highway reauthorization bill of at least $25 million annually, combined
with the restoration to the IRR Program of the obligation limitation
exemption which existed prior to TEA-21. These funding increases for
Indian reservation roads are the absolute minimum needed to keep up
with inflation, let alone meet the growing needs of Indian country.
Congress must sustain and continue its commitment to improving
transportation infrastructure on Indian reservations if the gains of
the last few years are to be maintained. This commitment will spur
economic development on Indian reservations more than any other single
Congressional action.
2. Increase funding for the BIA Road Maintenance Program within the
Interior and Related Agencies Appropriations Act
Funding for the BIA Road Maintenance Program is a national
disgrace. The Administration's use of the Program Assessment Rating
Tool (PART) Performance Measurements to justify annual reductions to
the BIA Road Maintenance Program is shortsighted and fails to protect
these valuable taxpayer-funded infrastructure investments. The Office
of Management and Budget's road budget makes no economic sense and
squanders taxpayer money. Failing to adequately budget for the BIA Road
Maintenance Program also violates Federal law.
When, in SAFETEA-LU, Congress authorized Tribes to spend up to 25
percent of their IRR Program dollars for maintenance, Congress
expressly stated that:
``The Bureau of Indian Affairs shall continue to retain primary
responsibility, including annual funding request
responsibility, for road maintenance programs on Indian
reservations. The Secretary [of Transportation] shall ensure
that [IRR Program] funding made available under [section 204(c)
of Title 23] for maintenance of Indian reservation roads for
each fiscal year is supplementary to and not in lieu of any
obligation of funds by the Bureau of Indian Affairs for road
maintenance programs on Indian reservations.''
23 U.S.C. Sec. 204(c), as amended.
The opposite of what Congress intended in SAFETEA-LU is occurring.
As funding for the IRR Program goes up as authorized under SAFETEA-LU,
the Administration submits budgets to Congress to reduce funding for
the BIA Road Maintenance Program. Newly built or reconstructed roads
must be maintained if they are to meet their design life and provide
safe passage for people, goods and services.
Poorly maintained roads in the Dakotas have cracks from frost
heave, rutted pavement from tire wear, prairie dog damage and faded and
worn pavement markings. These compromised conditions contribute to
traffic accidents by degrading the pavement surface and can contribute
to a driver losing control in snow or rain and at high speeds. \20\
---------------------------------------------------------------------------
\20\ ``Road Safety Audit for Improvements to Standing Rock Sioux
Tribe Reservation Roads,'' Hamilton Associates, October 2005, pp. 10-
11.
---------------------------------------------------------------------------
The BIA Road Maintenance Program is so poorly funded that there is
no allowance for even emergency road maintenance needs to address life
threatening circumstances that result from a ``catastrophic failure or
natural disaster.'' As stated in the IRR Program regulations, examples
of emergency maintenance include ``ice and snow control, traffic
control, work in slide areas, repairs to drainage washouts, retrieving
hazardous materials, suppressing wildfires, and repairing the ravages
of other disasters.'' 25 C.F.R. Sec. 170.812. Every BIA Region
experiences emergency road and bridge maintenance needs yet lacks the
resources to respond to them.
The following table illustrates the see-saw funding levels for the
BIA Road Maintenance Program since 1980.
In recent years, the BIA Road Maintenance Program budget, as a
percentage of the IRR Program appropriation for the same year, has
fallen below 10 percent. In 1990, Congress appropriated $30.598 million
which represented 37.7 percent of the combined maintenance and
construction budgets. But by 2000, road maintenance as a percentage of
available maintenance and construction funding had fallen to 9 percent
and funding dropped to $26.437 million.
At its high watermark fifteen years ago, in 1992, the BIA Road
Maintenance Program received $41 million and accounted for 25.7 percent
of the combined road maintenance and construction appropriation
allocation for the IRR Program. According to data in the Roads
Inventory Field Data System (RIFDS), between 1996 and 2006, the IRR
Program inventory grew nearly 74 percent, from 49,132 miles to 85,454
miles. If the Administration's FY 2008 funding request for the BIA Road
Maintenance Program is approved by Congress, Road Maintenance funding
will fall to $26 million, or 6.1 percent of total maintenance and IRR
Program construction funds, its lowest percentage level in over 56
years.
To spend six cents of every dollar on road maintenance when other
public authorities spend many times that amount does not protect the
investment which the Unites States and Indian Tribes have made in
transportation infrastructure. This funding gap also exacerbates the
backlog of unmet construction need by cutting the useful life of roads
in half and will lead to more traffic injuries and fatalities. The lack
of adequate road maintenance funding hinders every other form of
financial assistance to Indian country, thus making it more difficult
for the United States and Indian Tribal governments to achieve their
stated Indian policy goals.
a) The PART Performance Measurement of the BIA Road Maintenance Program
Misses the Mark
The Administration's PART Performance Measurement acknowledged that
state and county governments provide more resources per mile than the
BIA. It noted that the majority of the BIA road system (\2/3\ of the
system) is unimproved and earth surface (dirt) and, ``therefore,
requires far more extensive methods to maintain for public use.'' \21\
The PART evaluation of the BIA Road Maintenance Program concedes that:
---------------------------------------------------------------------------
\21\ See OMB's Program Assessment Rating Tool Performance
Measurement for the BIA Road Maintenance Program (2004)
(www.whitehouse.gov/omb/expectmore/detail/10002352.2004.html).
``The problem is (1) local public entities are refusing to use
their HTF [Highway Trust Funds] funding to reconstruct their
roads/bridges when they have met their design life, forcing
Tribes to redirect their IRR HTF funding to reconstruct these
roads/bridges; and (2) local public entities do not maintain
their roads adequately requiring these roads/bridges to be
reconstructed more frequently. This results in ineffective use
of BIA road maintenance resources and Tribal HTF resources.''
\22\
---------------------------------------------------------------------------
\22\ Id.
Is it any wonder that the BIA Road Maintenance Program is scored by
OMB as not demonstrating results? But rather than recognizing that the
poor performance of the BIA Road Maintenance Program is due in large
part to insufficient funding, and requesting additional funding to
address this problem, the Administration has used the poor PART
Performance Measurement as a justification for seeking less funding for
the BIA Road Maintenance Program. Recognizing that under Administration
policies, funding is tied to the PART Assessment, the IRR Program
Coordinating Committee, in January 2007, asked the BIA to have
officials responsible for the PART Performance evaluation of the BIA
Road Maintenance Program to brief the Committee on the evaluation, and
identify ways to improve the Program's rating. The BIA has been
unresponsive and this briefing still has not occurred.
It is the United States' statutory obligation under SAFETEA-LU and
other Federal laws to maintain the IRR Program system of roads. Common
sense dictates that if taxpayer dollars are used to finance a public
road in Indian country, the United States should also ensure that funds
are adequate to ensure that the full useful life of the public road is
met. Are not the roads over which millions of Native Americans and
others travel each day just as important to the Federal Government's
trust responsibility to Tribal resources as the land over which the
roads lie?
The authority granted Indian Tribes in SAFETEA-LU to use up to 25
percent of their annual IRR Program funds for maintenance purposes does
not excuse the Interior Department of its statutory and moral
obligation to keep IRR Program roads safe and adequately maintained.
b) Indian Reservation Roads Cost More to Maintain But Receive Less
In January 2007, the Coordinating Committee provided BIA officials
with statistics (Caterpiller Performance Handbook, 1999) that showed
that the typical 5-year cycle maintenance costs for a gravel road--the
predominant road type in Indian country--is $4,160 per year per road
mile for grading, resurfacing, and re-graveling.
To demonstrate how bad the shortfall in maintenance funding is, if
Congress appropriated the 1999 estimate of $4,160 for the 34,885.3
miles of just the BIA- and Tribally-owned routes now included in the
BIA's RIFDS, made no adjustment for inflation, and excluded funding for
routes owned by States, counties, townships, etc., and appropriated an
additional $20 million to maintain the approximately 1,200 BIA- and
Tribally-owned bridges included in the IRR Program inventory (which
represent only 27.5 percent of the 4,301 IRR Bridges), the Road
Maintenance Program budget would be $165.122 million for FY 2008
($145.122 million + $20 million). The Administration's FY 2008 Road
Maintenance request of $26 million is only 15.75 percent of the
$165.122 million figure.
The road maintenance funding estimate I have proposed excludes any
funding to maintain routes and bridges now included in RIFDS which are
owned by public authorities other than the BIA and Tribes. But, as
noted by OMB, many of these roads are being and frankly must be
maintained by Tribal governments in order to provide critical access to
Tribal communities. \23\ In fact, as of today, there are 86,759 miles
in RIDFS (51,873 miles of non-BIA and Non Tribally owned routes) and
4,301 bridges, owned by both Federal, Tribal, State, county, township,
and other State subdivisions.
---------------------------------------------------------------------------
\23\ Id.
---------------------------------------------------------------------------
If Tribes and the Federal Government invest taxpayer dollars to
build and reconstruct roads in Indian country, it makes sense to
adequately maintain these routes to improve their useful life. If
pennies are spent on road maintenance, dollars will need to be spent on
road reconstruction, and many more dollars on the societal cost of
traffic fatalities and injuries.
ITA, NCAI and many Tribal leaders have requested at least a $100
million funding level for the BIA Road Maintenance Program. The BIA has
acknowledged that it requires at least $120 million to annually
maintain BIA-owned roads and bridges, $50 million per year for bridge
rehabilitation and replacement, and $100 million per year for upgrading
and expanding transit services and systems. \24\
---------------------------------------------------------------------------
\24\ ``Transportation Serving Native American Lands,'' TEA-21
Reauthorization Resource Paper, BIA (May 2003), p. 32.
---------------------------------------------------------------------------
Given the stark statistics discussed above, we respectfully request
that Congress appropriate at least $150 million for the BIA Road
Maintenance Program to maintain IRR Program roads and bridges to a
minimally adequate standard.
3. The BIA Must Comply with SAFETEA-LU's Mandate to Distribute
Available IRR Program Funds For the Use of Indian Tribes Within
30 Days of Receipt of the Funds
One of the biggest problems I have witnessed in the operation of
the IRR Program is the unnecessary delay by the BIA in distributing IRR
Program allocations among the 12 BIA Regions and, from these Regional
Offices, to the Tribal governments that have chosen to contract the IRR
Program and BIA Road Maintenance Program under the ISDA. Congress was
clear in SAFETEA-LU when it amended the law to require that:
``Not later than 30 days after the date on which funds are made
available to the Secretary of the Interior under [section 202
of Title 23] funds shall be distributed to, and available for
immediate use by, the eligible Indian Tribes, in accordance
with the formula for distribution of funds under the Indian
reservation roads program.''
23 U.S.C 202(d)(2)(E)(i).
The reality is that the BIA does not distribute IRR Program funds
within 30, 60, or even 90 days of receipt from the FHWA. On the one
hand, the BIA claims that it cannot transfer the IRR Program funds
until it has self-determination contracts or self-governance compacts
in place, and on the other hand, it has dragged its feet in finalizing
mutually acceptable model funding agreements. It cannot have it both
ways.
Contrary to this statute, each August, BIA Regions return tens of
millions of dollars of IRR Program funds to BIA Headquarters because
these funds were received too late in the Fiscal Year, while Tribes are
practically begging for construction funds. Short construction seasons
mean that priority road projects do not get built and the cost for
building roads in Indian country continues to outpace funding.
4. Simplify the Federal Grant and Contract Application and Award
Process for Tribal Governments
Why are Tribal communities lagging so far behind the Nation in
reducing fatal traffic accidents? It is as if national campaigns to
reduce traffic accidents and deaths end at reservation boundaries. I am
afraid that resources are not reaching reservation communities at the
rate that they should. These shortfalls in funding have a devastating
effect on Native Americans who are dying and suffering injuries at
unacceptable rates.
If Indian Tribes are eligible recipients of Federal transportation
funding, for the programs to work in Indian communities, the money must
reach the intended beneficiaries. That is not the case presently.
Part of the problem lies in the cumbersome, and wholly separate
processes by which Indian Tribes must apply for Federal transportation,
transit, and traffic safety grants administered by multiple Federal
agencies (BIA, FHWA, NHTSA, FTA, Federal Aviation Administration (FAA),
etc.) or Federal transportation grants administered through the States
(Safe Routes to Schools, High Risk Rural Roads, Highways for Life,
etc.).
We strongly recommend that agencies within the Department of
Transportation (Federal Lands Highway, FTA, NHTSA, and FAA) develop a
simplified contract document for Tribes. This will encourage more
Tribes to apply for these grants and bring the benefits of the Federal
programs to Indian communities where they are most needed. Direct
Federal funding of Tribes through Tribally protective and appropriate
government-to-government agreements streamlines Tribal access to
Federal program funds by removing artificial barriers to these grant
funds by eliminating the unnecessary, costly and time consuming process
of requiring Tribes to contract with the States for receipt of Federal
transportation dollars. The Safe Routes to School Program and High Risk
Rural Roads Program are just two examples among many of the Federal
programs that should be directly available to Indian Tribes.
As noted above and as discussed in the 2006 report by the National
Conference of State Legislatures, most Tribal governments lack the
personnel and resources to administer multiple Federal grants and
contracts with widely varying terms and conditions. Complex,
conflicting grant conditions and reporting requirements hinder
efficient Tribal administration of transportation programs and
projects. The agencies should develop a single grant application
process with one annual deadline as Congress directed the Secretary of
Transportation to do for the States in applying for Highway Safety
Program grants under SAFETEA-LU. See 23 U.S.C. Sec. 402(m), as amended,
sec. 2002(d) of SAFETEA-LU, 119 Stat. 1521-1522.
Developing a simplified agreement, which takes into account the
unique legal status of Tribes and respects Tribal sovereignty, will
improve program performance and Tribal accountability.
Under SAFETEA-LU, Congress directed the BIA to also ``establish a
similar simplified process for applications for grants from Indian
Tribes under [Chapter 4 of Title 23]'' as well. Id. To date, I am not
aware of any action taken by the BIA's Indian Highway Safety Program
(IHSP) to consult with Indian Tribes, the Nation's Tribal Technical
Assistance Programs (TTAPs), or the IRR Program Coordinating Committee
concerning the development of a simplified single grant application
process for Highway Safety Program grants. Despite numerous invitations
to the former Program Administrator of the BIA's IHSP to attend an IRR
Program Coordinating Committee meeting, no representative of that
office has ever attended a Coordinating Committee meeting. This has
occurred even though a number of our meetings were held in Albuquerque,
New Mexico where IHSP offices are located.
I trust that the next Program Administrator will actively consult
and work with Indian Tribes, the TTAPs, and the Coordinating Committee
to implement SAFETEA-LU's mandate.
5. Implement Model IDSA Contracts and Agreements so that Indian Tribes
May More Easily Assume the Secretary of the Interior's Duties
for the IRR Program
Congress recognized the need for a standardized model contract in
the self-determination context in 1994 and legislated, in P.L. 103-413
(1994), the content of a non-construction Indian Self-Determination Act
(ISDA) contract. See 25 U.S.C. Sec. 450l. This is known as the ``model
Section 108'' ISDA contract. Similar model agreements should be
developed to speed the distribution of Federal transportation dollars
to Indian Tribes as direct recipients.
The IRR Program Coordinating Committee and other Tribal advocates
provided a sample Title I Indian Self-Determination contract to BIA
officials in the summer of 2006 for use in the IRR Program. To date,
the BIA has not approved a sample ISDA contract for Indian Tribes. Only
last month did the BIA' s Office of Self-Governance issue a proposed
Title IV Self-Governance Model Indian Reservation Roads Addendum for
use by Self-Governance Tribes. Tribes are still waiting for the
Interior Department's awarding officials and attorneys to provide a
response to the Tribally proposed model Title I ISDA contract for the
IRR Program.
Interior Department attorneys have incorrectly concluded that
Tribes must negotiate a separate agreement if they wish to use
innovative financing techniques to pay for eligible IRR Program
projects. This is shortsighted and legally unnecessary. It will hinder
the use of innovative financing techniques by Tribes by raising the
transactional costs associated with flexible financing arrangements.
Because of the Interior Department's intransigence on this issue,
Tribes are being forced to use outdated, overly burdensome ISDA
contracts that BIA Regional Office Awarding Officials are ``used to''
negotiating. These contracts do not reflect many of the hard won
improvements to the IRR Program that Tribes negotiated with BIA and
FHWA in the final IRR Program regulations, implemented in November
2004, and which Congress included in SAFETEA-LU. These improvements
include Tribal approvals of Plans, Specifications & Estimate (PS&E)
packages, full annual advance funding, and innovative financing
techniques by which Tribal governments, if they choose, can leverage
IRR Program funds to help finance road projects.
The delay in the award ofIRR Program contracts hurts every Tribe's
bottom line and reflects poorly on the BIA' s administration of the IRR
Program. Roads are not being built in a timely manner and present
continuing safety risks. Construction seasons are limited in many BIA
Regions. The ideal time to bid out construction jobs--to lower cost--is
in the middle of winter, not in the spring or summer months when the
BIA is now releasing the majority of IRR Program funds.
Delays in the ISDA contracting process, a process that has been in
place for over 30 years, only make transportation construction more
costly. Model IRR Program funding agreements will help bring the BIA
into compliance with SAFETEA-LU's 30-day payment mandate and better
serve Indian country.
It should be a goal of the Department of Transportation and
Department of the Interior to lower the cost of doing business in
Indian country. It will allow Tribes to put Federal funds into the
roads and bridges that can improve the quality of life of our
communities, not waste money serving a complicated bureaucracy. This
goal cannot be met until the BIA approves and widely distributes to the
BIA Regions acceptable model ISDA agreements.
6. The BIA and FHWA Must Complete a Comprehensive National Inventory of
Transportation Facilities Eligible for Assistance Under the IRR
Program
The inventory of the Indian Reservation Roads Program is growing at
a dramatic rate. In 2005, there were 62,319 road miles in the BlA's
RIFDS. In 2007, there are more than 85,000 road miles in RIFDS, an
increase of more than 37 percent. BIA System roads, those dirt, gravel,
and paved roads owned by the BIA, are only a subset of all eligible IRR
Program routes. The entire IRR Program System of roads eligible for
funding under the IRR Program is also comprised of routes owned by
Tribes, States, counties, townships, and other Federal agencies.
The IRR Program formula, by which Federal funds are apportioned
among the Nation's federally recognized Indian Tribes, places heavy
emphasis upon road inventory miles. See 25 C.F.R. Sec. 170.201 et seq.
The integrity of the IRR Program is dependent upon accurate and
complete information on each Indian Tribe's IRR Program inventory of
eligible roads.
a) SAFETEA-LU Mandates a Comprehensive Update
When Congress passed SAFETEA-LU in 2005, Congress directed the
Secretary of Transportation, in cooperation with the Secretary of the
Interior, to complete by August 10, 2007, a ``comprehensive national
inventory of transportation facilities that are eligible for
assistance'' under the IRR Program. See 23 U.S.C. Sec. 202(d)(2)(G).
The comprehensive inventory update was meant by Congress to be more
than just a ``snapshot'' of the current IRR Program inventory. It was
meant to identify and fill in the gaps between the existing incomplete
IRR Program inventory and what the inventory would include if all
eligible IRR routes were included.
Unfortunately, it is my understanding that a snapshot is all that
Indian country and the Congress will get, unless Congress demands that
the agencies conduct a comprehensive inventory update of the IRR
Program as it so plainly directed in SAFETEA-LU.
The inventory assessment is intended to assist the agencies to
identify Tribal transportation facilities and determine the relative
transportation needs among Indian Tribes. Eligible routes, at a
minimum, by law include:
i) routes included in the BIA system inventory receiving
funding since 1992;
ii) routes constructed or reconstructed with funds from the
Highway Trust Fund under the IRR Program since 1983;
iii) routes owned by an Indian Tribe;
iv) community streets or bridges within the exterior boundaries
of Indian reservations, Alaska Native villages, and other
recognized Indian communities (including communities in former
Indian reservations in Oklahoma) in which the majority of
residents are American Indians or Alaska Natives;
v) ``primary access routes'' proposed by Tribal governments,
including roads between villages, roads to landfills, roads to
drinking water sources, roads to natural resources identified
for economic development, and roads that provide access to
intermodal termini, such as airports, harbors, or boat
landings.
In addition, Congress directed in SAFETEA-LU that nothing shall
preclude the Secretary of Transportation from including additional
transportation facilities that are eligible for funding under the IRR
Program ``if such additional facilities are included in the inventory
in a uniform and consistent manner nationally.'' This has not occurred.
b) The BIA and FHWA Must Exercise Leadership
Regrettably, the IRR Program Coordinating Committee has not reached
consensus, and the BIA and FHW A have not adopted, uniform guidelines
on what routes are and are not eligible for inclusion in the IRR
Program inventory for purposes of determining funding under the IRR
Program formula (Tribal Transportation Allocation Methodology). How can
the IRR Program Coordinating Committee, BIA, FHWA, or Congress
accurately assess the fairness of the current formula for the IRR
Program if the BIA and FHW A have not set clear guidelines on the types
of routes that may be added to Tribal inventories or the process which
Indian Tribes and BIA Regions must follow to place such routes into the
RIFDS?
The impasse over establishing a ``bright line'' policy as to the
types of routes eligible for inclusion in the IRR Program inventory,
and the minimum data that Indian Tribes must include with every route
submitted to the BIA for inclusion in their IRR Program inventory, has
caused considerable delays, uncertainty, and frustration in the
distribution of IRR Program funds. Challenges and appeals over the
BIA's failure to include routes in the IRR Program inventory delay the
BIA's full distribution of IRR Program funds, again contrary to
Congress' 30-day payment mandate.
When the IRR Program Coordinating Committee cannot reach consensus
on fair, reasonable and equitable rules for the inclusion of routes in
the IRR Program inventory, it must fall to the BIA and FHWA to exercise
leadership. The Coordinating Committee is an advisory committee to
these agencies. I hope that the agencies will always accept the
Committee's recommendations. Ultimately, however, it is for the BIA and
FHWA to interpret and implement the law. But they must do so in a
timely manner. The IRR Program must benefit all Indian Tribes,
regardless of size. Every Indian Tribe has transportation needs. Large
Indian Tribes have large road inventories and require the funds to
maintain them, and replace them when they are worn. Smaller Tribes
require funds to plan, design, build, and maintain their priority
routes.
So long as the comprehensive update of the IRR Program, and the
identification of eligible routes that are not yet included in the
inventory, is incomplete, these additional routes are invisible to the
IRR Program, to policymakers and appropriators. Inventory is a key
component to funding and these agencies have a special obligation to
Indian Tribes to identify all eligible routes and help Indian Tribes
update their Tribal inventories.
c) Agencies' Report to Congress
SAFETEA-LU requires the agencies to submit a report to Congress on
the national Tribal transportation inventory not later than November
10, 2007, 90 days after the inventory is completed in August of this
year. Mr. Chairman, we want what Congress mandated in SAFETEA-LU: a
``comprehensive national inventory of transportation facilities that
are eligible for assistance'' under the IRR Program. By November 2007,
more than 2 years after SAFETEA-LU was enacted, if all the BIA and FHWA
report to Congress is that the IRR Program inventory is incomplete, and
does not include all routes that are eligible under SAFETEA-LU for
inclusion in the IRR Program inventory, the agencies will not be
telling Congress or Indian Tribes anything new.
We ask that this Committee direct the BIA and FWHA to provide
Congress and the Nation's Indian Tribes with a comprehensive review and
report on the total IRR Program inventory of transportation facilities
eligible for inclusion and funding under the IRR Program as directed in
SAFETEA-LU.
7. Congress Should Encourage the President to Nominate a Candidate to
Fill the Position of Deputy Assistant Secretary for Tribal
Government Affairs Within the Department of Transportation
Tribes worked very hard during the consideration of SAFETEA-LU to
develop consensus positions to advocate before the Administration and
Congress. This Committee knows how difficult it is to legislate in the
field ofIndian law and obtain a unified position from 564 sovereign
Tribal governments. Our strategy was quite successful as is reflected
in the many positive provisions contained in SAFETEA-LU. However, this
success will not be realized if the Administration does not act on the
legislative mandates.
For this reason, we are disappointed that the Administration has so
far failed to nominate anyone to fill the position of Deputy Assistant
Secretary for Tribal Government Affairs, as required by SAFETEA-LU.
Tribes advocated, during Congress' consideration of SAFETEA-LU, for the
creation of this position at the Assistant Secretarial level so that
Tribal transportation issues would be more prominent before the
Department and within the Office of the Secretary.
As it states in SAFETEA-LU: ``in accordance with Federal policies
promoting Indian self determination, the Department of Transportation
shall have, within the office of the Secretary a Deputy Assistant
Secretary for Tribal Government Affairs appointed by the President to
plan, coordinate, and implement the Department of Transportation policy
and programs serving Indian Tribes and Tribal organizations and to
coordinate Tribal transportation programs and activities in all offices
and administrations of the Department . . . .'' 49 U.S.C.
Sec. 102(f)(1), as amended.
If a Deputy Assistant Secretary at DOT had been in place, perhaps
the Department would have developed, in consultation with Indian
Tribes, Tribal eligibility for the Scenic Byways program as authorized
under SAFETEA-LU, and concluded that Indian Tribes are eligible sub-
recipients for the State-administered Safe Routes to School Program,
without requiring the intervention of Indian Tribes and the Congress,
to overturn the Department's initial position.
We commend FHWA Administrator Rick Capka, former Associate
Administrator Arthur Hamilton, and Office of Transit Programs Director
Mary Martha Churchman, and their staffs, for their support of and
advocacy for the IRR Program, Tribal Transit Grants, and Tribal
transportation generally. The IRR Program is a small component of the
Federal Highway Administration's Federal Lands Highways budget and
jurisdiction. There is no substitute for an Assistant Secretary with
primary responsibility for ensuring that all agencies within DOT
coordinate their actions in a manner that best serves Indian country
and the overall goals of the Department.
We ask the Committee to urge the Administration to fill the Deputy
Assistant Secretary position at DOT at the earliest possible date. This
appointment will help achieve the goals of Congress, the
Administration, and Indian Tribes to improve the delivery of Tribal
transportation programs at all levels within the Department of
Transportation.
8. Increase the Number of DOT Programs Which Indian Tribes May
Participate in as Direct Recipients
Indian Tribes have demonstrated that they possess the capacity to
deliver successful transportation programs despite the many obstacles
that stand in our way. We are separate sovereign governments and not
subdivisions of the States. While Indian Tribes may be eligible sub-
recipients of some State-administered programs financed by the U.S.
Department of Transportation, such as the Safe Routes to Schools, High
Risk Rural Roads Program, and Highways for Life, Indian Tribes do not
typically receive their fair share of these program funds.
I hope this written testimony and the statistics that I have
referenced, drive home to you how great the transportation needs are in
Indian country. A little assistance will go a long way because our
statistics of traffic safety accidents and fatalities are so high.
Congress should therefore increase the number of Department of
Transportation programs that Indian Tribes may apply for directly
rather than as sub-recipients through the States. In many instances,
the forms of State contracts are too cumbersome, or are simply
objectionable to Tribes, requiring Tribes to waive their sovereign
immunity from suit, or appear in State courts. The result is that
Tribes often do not even apply for these much needed grants.
9. Establish a Federal Lands Highways Safety Program for Indian
Reservation Roads; Set Aside for the High Risk Rural Road
Program; and Increase Funding for FTA's Tribal Transit Grant
Program to $50 Million Annually
Under SAFETEA-LU, for FY 2008, Congress authorized $1.275 billion
for the highway safety improvement program under section 148 of title
23 (High Risk Rural Road Program); and authorized nearly $700 million
under Title II of SAFETEA-LU for the Highway Safety Programs of chapter
4 of title 23. These funds include: for highway safety programs ($225
million); highway safety research and development ($107 million);
occupant protection incentive grants ($25 million); safety belt
performance grants ($124.5 million); State traffic safety information
system improvements ($34.5 million); alcohol-impaired driving
countermeasures incentive ($131 million); national driver register ($4
million); high visibility enforcement program ($29 million);
motorcyclist safety ($6 million); and child safety and child booster
seat safety incentive grants ($6 million).
SAFETEA-LU amended section 402(c) of title 23 to increase the set
aside of appropriations for Highway Safety Programs to the Secretary of
the Interior from percent of 1 percent to 2 percent annually, but this
increase still provides less than $5 million dollars to be divided
among all 564 federally recognized Tribes.
We must build on this success and establish an Indian Reservation
Roads Safety Program for the Federal Lands Highways office within the
Department of Transportation. In 2004 and 2005, Indian Tribes sought to
establish a set aside for the IRR Program for the High Risk Rural Road
Program during the Congress' consideration of SAFETEA-LU as well as a
Federal Lands Highways safety program funded at $40 million annually.
We currently recommend that Congress create a 2 percent set aside for
the IRR Program for the High Risk Rural Roads Program, and create a
Highway Safety Program for Indian reservation roads within the Federal
Lands Highways with an appropriation amount of $50 million annually to
dramatically reduce the incidence of death and injury on America's
Indian reservation roads.
If Congress develops Tribal set asides for Department of
Transportation safety programs, it would do so much to combat
behavioral and safety issues that contribute to the high rates of death
and injury on Indian reservation roads.
The Tribal Transit Program is a huge success and demonstrates the
unmet need for more transit funding of Tribal transit programs. Our
Reservation operates a transit program and it benefits so many of our
members, including students attending Sitting Bull College. As noted
above, nearly 100 Tribes submitted applications to FTA in the first
year FTA announced the program. FTA was able to fund over 60 of the
applicants. Due to the demonstrated high demand and proven results,
Congress should increase the authorization for the Tribal Transit Grant
Program to $50 million annually.
10. Increase Funding to the Successful Tribal Transportation Assistance
Programs (TTAPs) to at Least $2.5 Million Annually to Increase
Awareness in Indian Country of ``Best Practices'' in
Transportation Planning, Design, Construction, Maintenance, and
Highway Safety Measures
Tribal Technical Assistance Programs (TTAPs) are the real unsung
heroes in Tribal transportation policy. They work to educate Tribal
officials on transportation issues, increase the technical capacity of
Tribal governments in the transportation arena, and provide training in
safety and equipment operation and maintenance. As a result of their
efforts, Tribal governments are playing a greater, and more informed,
role in the delivery of transportation services to their communities.
The TTAPs are 15 years old, having been created in the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA) and is funded in
part through FHWA's Office of Professional and Corporate Development
(OPCD), and with IRR Program funds. Seven TTAPs assist Tribes
throughout the country. Under SAFTEA-LV, the BIA is authorized to fund
the TTAPs at $1.0 million annually. I recommend that Congress increase
funding to the TTAPs to $2.5 million annually so that they may expand
their valuable services to Indian Tribes.
11. Promote the Use of Flexible Financing Arrangements in Standard ISDA
Contracts and Agreements
Flexible financing or advance construction agreements allow Tribes
to use a portion of their IRR Program funds to repay government bonds
or commercial lenders the interest and principal for loans advanced to
the Tribe to finance an IRR Program-eligible project. To be eligible,
the project must be included on an FHWA-approved Transportation
Improvement Program (TIP). Innovative financing is different than pay-
as-you-go (paygo) arrangements in that an entire construction project
may be bid out as a single project which creates economies of scale,
reduces mobilization costs, and minimizes the negative effects that
construction inflation would otherwise have on available funds that are
saved by the Tribe over time.
We are disappointed that the Assistant Secretary--Indian Affairs
informed the IRR Program Coordinating Committee in April 2007 that the
BIA will not recognize advance construction authority through straight-
forward Indian Self-Determination Act (ISDA) contracts and Self-
Governance agreements. Instead, the BIA will only enter into an advance
construction arrangement with a Tribe through negotiation of a separate
agreement, under authority of 23 U.S.C. Sec. 204, which is not included
in or referenced by the ISDA contract or agreement.
The Assistant Secretary's letter does not explain the BIA's
rationale as to why the ISDA contract, the contract document which
Tribal governments are most familiar with and accustomed to negotiating
with the BIA for over 30 years, is not an acceptable agreement for the
use of flexible financing arrangements by Tribes.
The BIA's decision will likely result in fewer Tribes using advance
construction agreements in the future to finance eligible road
construction projects. This decision will also make it harder for
Tribes to obtain short term bridge loans to complete projects at the
end of a fiscal year. This will mean unnecessary project closures and
costly demobilizations and remobilizations. To mandate that Indian
Tribes must negotiate a separate advance construction agreement is not
sensible and raises the cost of doing business in Indian country. As
the Assistant Secretary concedes in his letter, the ``Federal
Government does not act as a surety, guarantor, or project financier or
request approval of a loan from any lending institution'' under these
agreements, so there is no reason to require the Tribes to enter into a
separate entirely superfluous agreement, when the Self-Determination
agreement can serve this same purpose.
By contrast, FHWA, in negotiating its IRR Program Agreement with
five Indian Tribes in 2006, allowed the IRR Program Agreement to
reference the IRR Program regulations' flexible financing provisions
(25 C.F.R. 170.300 et seq.), and permit the Tribes, at their option, to
direct a portion of their IRR Program funds to be paid from FHWA
directly to the bond trustee or lending institution financing an
eligible project under the IRR Program. This more sensible approach
lowers transaction costs and provides incentives to lenders to do
business with Tribal governments on transportation projects.
We encourage the Committee to either counsel the Department of the
Interior to retract its unwarranted decision or clarify in future
legislation that advance construction agreements may be included in the
standard Title I ISDA contract and Title IV Self-Governance agreement.
12. Implement Right-of-Way Reform in Indian Country to Facilitate
Reconstruction of Existing Roads and the Design and
Construction of New Roads
Reservation areas are often a checkerboard of fee, allotted, and
Tribal trust lands. Therefore, it is often time-consuming and expensive
for Tribes and the Federal Government to obtain all of the necessary
and appropriate rights-of-way before beginning construction or
renovation of roadways, bridges, and other transportation
infrastructure.
The BIA is responsible for maintaining records of rights-of-way in
Indian Country. Unfortunately, BIA right-of-way records management is
in a terrible state. IRR projects are often delayed by months--or even
years--because the BIA realty officers cannot locate valid right-of-way
records. Tribes are using their IRR Program funds, the only funds the
BIA claims are available, to cure inaccurate or lost rights-of-way.
Tribal and Federal funds are thus often wasted in re-acquiring valid
rights-of-way simply because adequate BIA records have not been kept.
The Interior Department should undertake a major new initiative to
organize, update, and computerize its BIA right-of-way records. It
should make these records available to Tribal governments in an easy-
to-access format such as a GIS/GPS mapping system. The Interior
Department should also be more aware and protective of Tribal
jurisdictional interests in the right-of-way acquisition and transfer
process, in light of the U.S. Supreme Court's adverse right-of-way
ruling in Strate v. A-1 Contractors, 520 U.S. 438 (1997) and subsequent
cases.
The Federal Government should also work closely with Tribes to
implement a proactive program of ``corridor management.'' Through
``corridor management,'' Tribally preferred corridors for
transportation and other infrastructural elements--such as for
electrical lines, water lines, and others--can be planned well in
advance. In some instances, the easements for these corridors may be
obtained in advance. Corridor management requires Tribal governments to
think proactively about how they envision future development to occur
on their reservations. Through corridor management, rights-of-way for
all inter-related infrastructural development projects can be obtained
in a unified manner, speeding up design and construction once a
specific project is authorized and funded.
The Federal Government should be an active and supportive partner
in providing technical assistance to Tribes who wish to apply the
principles of corridor management to their transportation programs and
to general reservation development.
VI. Conclusion
Indian Tribes are coming into their own in the transportation
field. Tribal governments are focusing on long-range transportation
planning, assuming the Interior Department's duties for the IRR
Program, partnering with States and county governments on mutually
beneficial construction projects, and looking at innovative ways to
finance the development of infrastructure on their reservations. These
trends should be applauded and I wish to thank the Members of this
Committee for the many beneficial legislative changes that you worked
to include in SAFETEA-LU. Yet even with these successes, many
challenges still remain. Congress and the Administration must recognize
that if Indian Tribes are to overcome these challenges, Tribal
governments must be given the resources to succeed.
I hope that as a result of this hearing Tribal governments, Tribal
Technical Assistance Programs (TTAPs), ITA and State DOTs, can work in
greater concert with the BIA and Department of Transportation to
improve transportation infrastructure in Indian country--from building
and enhancing Tribal transportation departments to building and
maintaining safer roads in Indian country.
Tribal communities will not suffer the traffic fatalities and
injuries at the rates we are now seeing if we can interact on a more
equal footing with States, to plan, design, build and maintain our
inventory of roads, and implement traffic safety measures which States
have shown to be successful in promoting highway safety. Pockets of
best practices exist within the agencies which demonstrate that the
manner by which Indian Tribes receive Federal funds and operate Federal
transportation can be improved for the better. Tribes need the help of
Congress to makes these best practices the rule, rather than the
exception.
Tribal governments, Federal agencies, and Congress need to open a
new dialogue where old habits and old ways of doing business are
discarded for more efficient practices. We are making progress in
Tribal transportation and I encourage this Committee and the Congress
to work in partnership with Indian Tribal governments. Indian Tribes
are ready to do our share to improve the safety of our communities for
ourselves and our children's future.
Thank you for giving me the opportunity to provide this written
testimony regarding Tribal transportation issues on behalf of the
Intertribal Transportation Association.
______
Prepared Statement of The Board of Supervisors, Navajo County, Arizona
The Board of Supervisors of Navajo County, Arizona thank Chairman
Dorgan, Acting Vice Chair Murkowski, and the esteemed Members of this
Committee, including Arizona's own Senator John McCain, for this
opportunity to provide a different kind of local perspective--a County
perspective--on transportation issues in Indian Country. Specifically,
we wish to raise to this Committee's attention the crucial yet often
overlooked issue of the maintenance of Indian Reservation Roads. As a
local jurisdiction whose boundaries include large portions of the White
Mountain Apache, Hopi and Navajo reservations, Navajo County is
committed to assuring that county residents who happen also to be
tribal members living on their reservations have all weather access to
all of the roads within our County, whether on reservation or off.
Background
Too often, counties are overlooked in discussions about Federal
policies in Indian Country because so much attention is given to the
Federal and state government-to-government relations with tribes. The
fact is, counties are very often the local government with whom tribes
share members/residents and infrastructure. For example, when the dirt
roads on the reservations wash out due to bad weather, which happens
several times each year, Navajo County is asked to bring its own
equipment and personnel to make repairs to Indian Reservation Roads
(IRR) so that our county residents do not remain stranded while they
wait for the Bureau of Indian Affairs (BIA) to show up.
Today, most of the roads on the Indian reservations in Navajo
County are still entirely unpaved, looking pretty much like they did
before there were automobiles. Under normal circumstances, these roads
are difficult to pass due to poor or nonexistent road maintenance.
During seasonal weather events--including rain, snow, mud and sand
storms--these roads become protracted public health, safety and
education emergencies because BIA does not have the apparent ability to
provide either regular or emergency maintenance.
Ironically, most of the off-reservation roads within our county are
also dirt, yet provide all weather access because we maintain them. Our
county government could never get away with providing the kind of
inadequate service to its residents that BIA subjects reservation
residents. It is our position that the people who live on the
reservations within Navajo County are county residents to whom we are
obligated to provide public access. For this reason, we not only are
often the first responders to help people trapped by washed out BIA
roads, but also are subsidizing the Navajo Area Office with cash,
equipment, material and personnel, to the tune of at least $3.5 million
over the last 3 years.
The Problem With Road Maintenance Policy
BIA prioritizes maintenance of paved roads over maintenance of
unimproved roads to protect the Federal investment in the IRR program.
This perspective makes sense to a Federal agency accountable to the
Government Performance and Results Act. The problem is that in the
context of Indian Country, where few of the roads are paved, this makes
no sense at all and renders BIA totally unaccountable to the very
people it is mandated to serve.
Moreover, BIA's definition of road maintenance precludes
improvement of dirt roads and prohibits making them all weather access.
Section 170.4 of the IRR Rule defines maintenance as, ``preservation of
the entire highway, including surface, shoulders, roadsides, structures
and such traffic control devices as are necessary for the safe and
efficient utilization of the highway.'' Section 170.808 prohibits the
improvement of the surface condition of any road.
As a practical matter, from the perspective of those who use them,
all roads are local, which is why the Federal agency's maintenance
priorities should reflect local priorities. In Navajo County, whether
on or off the reservation, the highest local priority is maintenance of
school bus routes. Congress has already acknowledged the import of
providing all weather access to federally funded schools by withholding
funds from a state that does not maintain federally funded highways
(Title 23, Section 116). We respectfully wonder why Congress does not
hold BIA to this same standard.
Local Solutions
The Navajo Nation Department of Transportation (NDOT) is leading an
exciting effort to bring road maintenance into the 21st century and
Navajo County is proud to be a part of this initiative. In 2006, NDOT
convened a working group of road engineers from every jurisdiction
within the exterior borders of Navajo and Hopi--including BIA, the
State of Arizona, multiple counties and the Navajo and Hopi tribes--to
promulgate new guidelines for the maintenance of unimproved IRR roads.
The result is the ``Navajo Nation Road Standards and Engineering
Specifications for Earth/Dirt and Gravel Roads.'' This locally
generated road engineering standard for maintenance (which will soon be
codified into Navajo law) preserves the Federal floor of all applicable
statutes and regulations (i.e. NEPA, Clean Water Act, Endangered
Species, etc.) while constructing a regulatory scheme that makes sense
for local conditions.
There are two key differences between these new, locally generated
maintenance guidelines, and BIA policy. First, the definition of road
maintenance is broadened to allow improvement for all weather access,
meaning that rather than only allowing IRR roads to be bladed,
maintenance crews would also be allowed to add gravel and create
drainage. Currently, maintenance of IRR dirt roads is limited to annual
or semiannual blading, which only lasts for hours or days and
ultimately creates a surface that acts like a trench and fills up with,
rather than drains, water. Second, the ``Navajo Nation Road Standards
and Engineering Specifications for Earth/Dirt and Gravel Roads''
prioritizes school bus routes before any other kind of road because our
communities value our children's education above all else.
The Dependable Indian Rural Transportation (DIRT) Project is a road
maintenance partnership between the Navajo Nation and Navajo County to
improve the all weather accessibility of unpaved roads through
implementation of the Navajo Nation Road Standards and Engineering
Specifications for Earth/Dirt and Gravel Roads. This partnership
recognizes how mutual tribal and county participation in transportation
projects of shared interests will benefit our common purpose to protect
public health, safety and welfare of our tribal and county residents.
Through the DIRT Project, Navajo County will provide unimproved
road maintenance training and technical assistance to the Navajo Nation
in order to help Navajo assume responsibility for their own
transportation function from the BIA. Tribes already maintain
discretion to allow other jurisdiction's to supersede BIA's
administration of road programs (IRR Rule Section 170.4 (d)). Toward
this end, both the Navajo Nation and Navajo County are poised to commit
$7.5 million over the next 5 years for this effort. However, in order
to tackle this situation across the reservation, the DIRT Project will
need $27 million over the next 5 years.
Navajo County and NDOT hope the DIRT Project can serve as a
national model for using local partnerships and expertise to finally
make IRR maintenance a reality for the vast majority of tribes whose
transportation infrastructures do not consist of paved roads. The
innovation the DIRT Project has to offer is its locally driven two
prong approach that creates (1) a Tribal and County Road Maintenance
Partnership and (2) Local Road Maintenance Standards and Priorities.
Navajo County urges Congress to authorize the DIRT Project as a pilot
project for export throughout Indian Country through the next
reauthorization of the Federal highway bill (SAFETEA-LU
reauthorization).
Conclusion
While it is no secret that the BIA has little funding for road
maintenance within its budget, the real issue is not money but policy,
and that is a problem this Committee can begin addressing immediately.
Navajo County invites this Committee to visit the DIRT Project to
better understand the daily struggle that BIA's road maintenance
creates for anyone traveling on IRR roads, the majority of which on the
IRR inventory are dirt. By helping to change BIA's current policy, this
Committee can give the American taxpayer the biggest bang for their
buck by making most roads in Indian County safe and accessible.
______
Prepared Statement of Johanna Dybdahl, Chairperson, Southeast Tribal
Department of Transportation Commission
Before I move into my testimony I want to express my condolences
and those of the Southeast Tribal Department of Transportation to the
family and friends of Senator Craig Thomas, and to this Committee. My
own sister is stricken with cancer and sadly for my family has elected
to cease treatment.
Thank you for the opportunity to provide written testimony on the
IRR Program. The Southeast Tribal Department of Transportation (SE
TDOT) is a consortium of 7 tribes from southeast Alaska that have
joined together under the Central Council Tlingit & Haida Indian Tribes
of Alaska's Compact with the Assistant Secretary of Indian Affairs. We
have done this to: economize on the costs associated with operation of
a tribal transportation program; develop expertise in the Indian
Reservation Roads (IRR) Program; access other transportation programs
available to tribal governments; and to work cooperatively with the
State and local governments on projects of mutual priority.
We have benefited from the changes to the IRR Program throughout
the years both legislative and through the negotiated regulations (25
CFR 170 IRR Program Regulations). The ability to assume the IRR Program
and manage it directly is perhaps the greatest benefit for us. Not only
does it give us direct access to our IRR funds, but it allows us to
manage our funds in a manner that benefits the whole community as well
as providing employment to tribal members. In the past we had little or
no access to Interiors BIA Road Maintenance funds, so the changes to
Title 23 United States Code authorized by the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users
(SAFETEA-LU) that allow us to use up to 25 percent of our IRR funds for
transportation facilities maintenance is another significant benefit.
We have seen an increase in IRR Program funding to some of our members
through updates of their IRR Inventories.
We strongly support:
1. The continuation of and increases in funding to the Indian
Reservations Roads Program.
2. The continuation of the BIA Road Maintenance Program and
recommend that it be funded at a level that provides for an
appropriate level of funding to support viable preventive
maintenance and needed snow removal. And we urge that it be
funded to address the needs for transportation facility
maintenance for all tribes, not just those that have roads
owned by the BIA.
3. An increase to the Federal fuel tax to allow for needed
increases in the Highway Trust Fund.
4. A scientific evaluation of the impact of roadway and
airstrip dust on heath and subsistence activities. As well as
studies that determine the methods of dust control that provide
the greatest benefits with the least impact to the environment.
5. Filling the position of Deputy Assistant Secretary for
Tribal Government Affairs identified within SAFETEA-LU.
6. Expansion of ferry services within Alaska. We have seen a
decrease in the number of ferries and not only support
increasing the existing service, but recommend expansion to
provide services to other villages and communities around
Alaska.
7. Continuation of and Increases in funding to the Federal
Transit Administration's Tribal Transit Program authorized by
SAFEATEA-LU.
8. Continuation of and increases in Tribal Transportation
Assistance Programs (TTAPs). We also encourage Congress to
provide Congressional Direction that requires appropriate
tribal consultation and preferable participation when TTAPs are
selected.
9. Expand direct participation by Tribes and the U.S.
Department of Transportation, so that Tribes may participate
directly with the U.S. DOT and its administrations and not be
subject to working through their respective State governments.
10. Authorize and fund a Highway Safety Program to address
safety issues on transportation facilities identified within
the National Tribal Transportation Inventory identified within
SAFETEA-LU.
11. Giving the Department of Interior Congressional Direction
that allows for innovative financing techniques in Indian Self-
Determination Contracts and Self-Governance Compacts.
12. Modification to statutory language and providing
Congressional direction on statutes that have been used to
prevent reasonable progress and construction within Indian
Country. Laws that impact the acquisition of transportation
facility rights-of-ways, environmental and archaeological
approvals. Too often important tribal projects that impact
health and safety of tribal members have been held hostage to
individuals following the letter of the law rather than the
intent, and the influence of outside interest groups that have
little regard for the human needs of the tribes and their
members.
There are two issues that have been particularly problematic to us
and we believe the other tribes within Alaska, as well as we the tribes
across the country.
A. Indian Reservation Roads Program Inventory
We believe that the current IRR Inventory, the Inventory used to
generate the Relative Need Distribution Formula is riddled with errors.
Data regarding the conditions of transportation facilities is
incorrect, and in many cases data regarding the ownership of
transportation facilities is in error. In addition, we believe there
have been data submission errors through either coding errors or
difficulty in understanding the coding guidelines. For instance roads
that fall under the jurisdiction of other governments may be generating
funding outside of the respective State's local match requirements as
required by the IRR Program Regulations. Additionally, the Bureau of
Indian Affairs has instituted policies that are outside of either
Statute or Regulation that has caused the process for updating IRR
Inventories to be excessively cumbersome and costly.
The IRR Inventory is meant to identify 80 percent of the
transportation need of the tribes; the other 20 percent is based on
tribal population. Though we believe the funding formula could be used
with an accurate and fair inventory for this purpose, we have strong
reservations regarding the accuracy of the data in the current
Inventory, and while many tribes have updated their IRR Inventories,
there continues to be a significant number of tribes across the country
that have not yet had their IRR Inventories updated either through non-
action by the Tribe or difficulty in having their submission accepted.
The IRR Program is meant to be jointly administered by the Bureau
of Indian Affairs (BIA) and the Federal Highway Administration (FHWA).
SAFETEA-LU gave significant authority to the FHWA on the IRR Inventory,
but we have seen a total lack of commitment on the part of FHWA to step
up and help address the problems identified above. Congress gave
direction in SAFETEA-LU on what is to be included in the IRR Inventory.
To date, we have observed no action on this Congressional direction.
B. Tribal Technical Assistance Program
An issue of grave importance to the tribes within Alaska is the
selection process used by FHWA to select our Tribal Technical
Assistance Program (TTAP). We had benefited greatly from the previous
5-year cooperative agreement between the FHWA and the Eastern
Washington University (EWU). The Process for selection was spelled out
in the IRR Program Regulations. We believe the FHWA made no effort to
consult with the tribes, had no tribal participation in the selection
process, and in many ways acted with bias in their process. A large
number of Alaska Tribes were very happy with the work of the AK TTAP
under the operation of the EWU. We were stunned when we learned that
the award of the current 5-year cooperative agreement was given to the
University of Alaska--Fairbanks. We reviewed the FHWA's selection
criteria and could find no justification for the selection. We consider
this action by FHWA a harmful action toward the tribes within Alaska.
We have learned that FHWA had issues with the high level of tribal
advocacy provided by EWU, and that they had no intent of awarding a
cooperative agreement to them. We believe that had FHWA advised the
tribes in Alaska of their concerns as part of a consultation, AK tribes
and tribal organizations would have applied in response to the
solicitation. As IRR Program funds are used to fund a portion of the
TTAP we believe there was a complete and utter failure on the part of
FHWA to follow their own policies on tribal consultation.
Regardless of our concerns with the IRR Program, it is a very good
government program. One that needs to continue as it is of great
benefit to the tribes. This past year my Tribe, the Hoonah Indian
Association, was able to use its IRR funds to working cooperatively
with the city of Hoonah to complete a city street paving project.
Though we didn't generate very many dollars, the SE TDOT was able to
use our FY 2005 and FY 2006 funds to enter into a cooperative agreement
with the City. This made it possible for the City to complete the
project as originally planned.
Thank you for providing this opportunity for tribes to weigh in and
testify on tribal transportation issues.
______
Standing Rock Sioux Tribe
Fort Yates, ND, July 26, 2007
Hon. Byron L. Dorgan,
Chairman,
Senate Committee on Indian Affairs,
Washington, DC.
Dear Chairman Dorgan:
I want to thank you for convening the Senate Committee on Indian
Affairs on July 12, 2007, to conduct an oversight hearing on
transportation issues in Indian country and for inviting Standing Rock
Sioux Tribe Transportation Director Pete Red Tomahawk to testify
concerning the state of transportation on Indian reservation roads.
From every indication, the attention your hearing has brought to the
deplorable state of Indian reservation roads and bridges--and the
threat to public safety that such transportation systems pose to the
traveling public--highlights the need for increased resources for rural
road safety, road construction, and road maintenance on America's
Indian reservation roads. Thank you for serving the Standing Rock Sioux
Tribe and Indian country so well.
I am also writing you to request that a South Dakota Department of
Transportation report which Mr. Red Tomahawk referenced in his written
testimony to the Committee be included in full in the official record
of the July 12, 2007 oversight hearing. The report, entitled:
``Improving Motor Vehicle Crash Reporting on Nine South Dakota Indian
Reservations,'' Study SD2005-14, Final Report, May 2007, prepared by
ICF International, Inc., details the lack of consistent crash report
data, the barriers to better crash reporting on tribal lands, and
suggested remedies to ensure that improvements are made to the
gathering of motor vehicle accident reporting in Indian country. I
enclose a copy of the SD DOT Final Report with this letter.
It is our view that the SD DOT study and recommendation made in the
report have broad application throughout Indian country. Improving the
ability of Indian tribes to accurately document motor vehicle
accidents, identify accident-prone roads, make safety repairs where
possible, and ensure that the BIA maintains a central repository of
Indian reservation road crash statistics, will improve road safety in
Indian country.
Thank you again for shedding light on this often neglected subject.
I look forward to working with you and your staff to build on the
success of the Committee's oversight hearing and make meaningful
improvements to the safety of Indian reservation roads.
Sincerely,
Ron His Horse Is Thunder,
Chairman.
cc: The Honorable Tim Johnson; The Honorable John Thune; The
Honorable Stephanie Herseth; Tribal Council; Mr. Pete Red
Tomahawk; and Mr. David Huft.
______
______
Written Questions Submitted by Hon. Byron L. Dorgan to John R. Baxter *
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* Responses to written questions were not available at the time
this hearing went to press.
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Deputy Assistant Secretary for Tribal Government Affairs
Question 1. If the Department of Transportation has not filled the
position of Deputy Assistant Secretary for Tribal Government Affairs,
how does the Department coordinate tribal concerns among the various
agencies and offices? Where is the Department in filling this position
that has been vacant for nearly two years?
Comprehensive National Tribal Transportation Facility Inventory
SAFETEA-LU requires that by August 10, 2007, the Secretary of
Transportation and the Secretary of the Interior must complete a
``comprehensive national inventory of transportation facilities that
are eligible for assistance under the Indian reservation roads
program.''
SAFETEA-LU lists some of the transportation facilities that are
eligible for assistance under the IRR Program.
Question 2. Does the Departments' comprehensive national tribal
transportation facility inventory include all roads and bridges that
are eligible for inclusion in the inventory?
Question 3. Does the inventory reflect Tribal transit systems?
Question 4. Are the procedures to include eligible routes in the
IRR Program inventory employed uniformly across the country in each of
the 12 BIA Regions?
Question 5. What improvements do you suggest to the inventory
update process?
Question 6. What is the average amount of time required to update a
Tribe's road inventory from the time the route is submitted by a Tribe
to the time the facility is actually included on the inventory?
Question 7. What is the average amount of time for the BIA and FHWA
to implement recommendations of the IRR Program Coordinating Committee
from the time a recommendation is made by that advisory body to the
time the Departments implements the recommendation as agency policy for
the IRR Program?
Road Maintenance
The motor vehicle fatality and injury statistics in Indian country
are appalling and unacceptable with death rates twice and in some times
three-times the national average.
Question 8. What role does road maintenance play in transportation
safety in Indian country?
Question 9. What is the current deferred Road Maintenance backlog
amount for BIA and Tribally-owned routes?
Question 10. Is the Department of Transportation satisfied that the
BIA is requesting sufficient funds to properly maintain IRR Program
facilities? If it is not satisfied, what does the Department plan to do
about it?
Question 11. Are traffic accidents underreported in Indian Country?
Question 12. Is there a uniform process by which the Department of
the Interior and the Department of Transportation collect traffic
accident data on Indian reservations and share that data with Tribes,
States, and one another?
Question 13. What affect does the present funding level for the BIA
Road Maintenance Program have on the useful life of roads and bridges
built and reconstructed with IRR Program funds?
Question 14. Why did the Indian Highway Safety Office not publish a
notice of grant availability for FY 2007 with respect to the two
percent of Highway Safety funds set aside under SAFETEA-LU for the
Department of the Interior to award to Tribes to carry out highway
safety programs? How did the Department expend these funds?
Question 15. What is the cost to update BIA-owned and Tribally-
owned Road Maintenance equipment that is purchased or maintained with
BIA Road Maintenance Program funds?
Question 16. What action has the Department of Transportation taken
to ensure that State and local governments build and reconstruct State-
and county-owned routes that are located on or provide access to Indian
reservations?
Question 17. What is the long term impact to the IRR Program
authorizing Tribes to use 25 percent of road construction funds to
address road maintenance needs that the BIA Road Maintenance Program
cannot remedy?
Funding Level for the IRR Program
According to the National Highway Traffic Safety Administration
(NHTSA), the motor vehicle death rate for Native Americans is twice,
and in some cases, three times the national average with motor vehicle
injuries the leading cause of death for Native Americans aged 1-34.
Based on the pre-existing unmet need for construction of roads and
bridges in Indian country, Congress, in SAFETEA-LU, increased funding
for the IRR Program from $275 million per year under TEA-21 to $300
million, rising to $450 million by FY 2009.
Question 18. Are the resources available to the Departments
adequate to address transportation infrastructure needs in Indian
country and reduce traffic fatalities and injuries among Native
Americans?
Question 19. How would you characterize the overall state of roads
and bridges in Indian country?
Question 20. Has the backlog of unmet construction need for IRR
Program roads and bridges gone down since SAFETEA-LU was enacted?
Question 21. Are the present funding levels authorized under
SAFETEA-LU for the IRR Program and IRR Bridge Program keeping pace with
construction inflation and satisfying the need for transportation
infrastructure in Indian country?
Question 22. Is the IRR Program subsidizing deferred road
maintenance needs for IRR Program routes that cannot be paid for with
BIA Road Maintenance funds alone?
Question 23. What is the Departments' estimate of the cost to
remedy the unmet need for construction of transportation system roads
and bridges in Indian country?
Timely Approval of Tribal Transportation Improvement Programs
In order to ensure that federal highway funds are spent only for
IRR projects that have been approved by the BIA and the FHWA, the IRR
Program regulations require each Tribe to prepare a Tribal
Transportation Improvement Program (TTIP) which must be approved first
by the BIA, and then by the FHWA and ultimately included on the IRR
Transportation Improvement Program (IRRTIP). Under the regulations,
Tribes may only expend funds for projects that are included on the
FHWA-approved IRRTIP. 25 C.F.R. Sec. 170.116(e). Tribes have expressed
frustration that the BIA takes an inordinately long time to approve and
update Tribal TIPs and to submit them to the FHWA for inclusion on the
IRRTIP. As a result Tribes with self-determination contracts often
cannot expend their IRR Program funds, because their projects have not
been included on the IRRTIP. In one BIA Region for example, in FY 2006
the BIA only approved the TIPS of approximately 10 percent of Tribes
with ISDA contracts with the result that the remaining Tribes have been
unable to expend their IRR Program funds.
Question 24. How long does it take on average for the BIA and FHWA
to approve and include a Tribal Transportation Improvement Program in
the IRR Program-TIP after the Tribe has submitted it to the agency?
Question 25. What mechanisms has your Agency adopted or proposed to
speed this process?
Question 26. Do the BIA and FHWA permit Tribes to submit TTIPs via
the internet and to track progress of the TTIP approval process on-
line?
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Written Questions Submitted by Hon. Byron L. Dorgan to Jerry Gidner *
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* Responses to written questions were not available at the time
this hearing went to press.
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Comprehensive National Tribal Transportation Facility Inventory
SAFETEA-LU requires that by August 10, 2007, the Secretary of
Transportation and the Secretary of the Interior must complete a
``comprehensive national inventory of transportation facilities that
are eligible for assistance under the Indian reservation roads
program.''
SAFETEA-LU lists some of the transportation facilities that are
eligible for assistance under the IRR Program.
Question 1. Does the Departments' comprehensive national tribal
transportation facility inventory include all roads and bridges that
are eligible for inclusion in the inventory?
Question 2. Does the inventory reflect Tribal transit systems?
Question 3. Are the procedures to include eligible routes in the
IRR Program inventory employed uniformly across the country in each of
the 12 BIA Regions?
Question 4. What improvements do you suggest to the inventory
update process?
Question 5. What is the average amount of time required to update a
Tribe's road inventory from the time the route is submitted by a Tribe
to the time the facility is actually included on the inventory? Provide
the written instructions and guidelines provided by the BIA to Indian
Tribes to implement an inventory update submittal.
Question 6. What is the average amount of time for the BIA and FHWA
to implement recommendations of the IRR Program Coordinating Committee
from the time a recommendation is made by that advisory body to the
time the Departments implements the recommendation as agency policy for
the IRR Program?
Road Maintenance
The motor vehicle fatality and injury statistics in Indian country
are appalling and unacceptable with death rates twice and in some times
three-times the national average.
Question 7. What role does road maintenance play in transportation
safety in Indian country?
Question 8. What is the current deferred Road Maintenance backlog
amount for BIA and Tribally-owned routes?
Question 9. Are traffic accidents underreported in Indian Country?
Question 10. Is there a uniform process by which the Department of
the Interior and the Department of Transportation collect traffic
accident data on Indian reservations and share that data with Tribes,
States, and one another?
Question 11. What affect does the present funding level for the BIA
Road Maintenance Program have on the useful life of roads and bridges
built and reconstructed with IRR Program funds?
Question 12. Has the BIA Indian Highway Safety Office developed a
simplified process for Tribes to apply for traffic safety grants as
required under SAFETEA-LU?
Question 13. Why did the Indian Highway Safety Office not publish a
notice of grant availability for FY 2007 with respect to the two
percent of Highway Safety funds set aside under SAFETEA-LU for the
Department of the Interior to award to Tribes to carry out highway
safety programs? How did the Department expend these funds?
Question 14. What is the cost to update BIA-owned and Tribally-
owned Road Maintenance equipment that is purchased or maintained with
BIA Road Maintenance Program funds?
Question 15. What amount of funding does the BIA estimate that it
needs annually to maintain IRR Program facilities owned by the BIA and
Indian tribes and currently reflected in the IRR Program inventory?
Question 16. What is the rationale for cutting the BIA Road
Maintenance Program budget at a time when the IRR Program inventory is
growing?
Question 17. The 2004 Program Assessment Rating Tool (PART)
evaluation of the BIA Road Maintenance System indicated that the
program results were not demonstrated. What actions has the BIA taken
since 2004 to produce and demonstrate results for the BIA Road
Maintenance Program?
Question 18. What is the long term impact to the IRR Program
authorizing Tribes to use 25 percent of road construction funds to
address road maintenance needs that the BIA Road Maintenance Program
cannot remedy?
Funding Level for the IRR Program
According to the National Highway Traffic Safety Administration
(NHTSA), the motor vehicle death rate for Native Americans is twice,
and in some cases, three times the national average with motor vehicle
injuries the leading cause of death for Native Americans aged 1-34.
Based on the pre-existing unmet need for construction of roads and
bridges in Indian country, Congress, in SAFETEA-LU, increased funding
for the IRR Program from $275 million per year under TEA-21 to $300
million, rising to $450 million by FY 2009.
Question 19. Are the resources available to the Departments
adequate to address transportation infrastructure needs in Indian
country and reduce traffic fatalities and injuries among Native
Americans?
Question 20. How would you characterize the overall state of roads
and bridges in Indian country?
Question 21. Has the backlog of unmet construction need for IRR
Program roads and bridges gone down since SAFETEA-LU was enacted?
Question 22. Are the present funding levels authorized under
SAFETEA-LU for the IRR Program and IRR Bridge Program keeping pace with
construction inflation and satisfying the need for transportation
infrastructure in Indian country?
Question 23. Is the IRR Program subsidizing deferred road
maintenance needs for IRR Program routes that cannot be paid for with
BIA Road Maintenance funds alone?
Question 24. What is the Departments' estimate of the cost to
remedy the unmet need for construction of transportation system roads
and bridges in Indian country?
Question 25. At the close of FY 2004, did the BIA have any
unobligated IRR Program funds from FY 2004 or prior years? If so: (i)
what was the amount of those funds? (ii) how were those funds expended?
And (iii) how much funding remains unobligated?
Standardized Contracts and Funding Agreements to Eliminate Delays in
Disbursing IRR Program Funds
Indian tribes have expressed frustration at the length of time the
BIA takes to disburse appropriated IRR funds to Tribes that are
eligible to enter into contracts under the Indian Self-Determination
Act, especially in places that have very short construction seasons.
The BIA will not disburse funds until the Tribe enters into an ISDA
contract, but Tribes have reported that the contracting process is
overly antagonistic and that BIA contracting officials often refuse to
incorporate important provisions of SAFETEA-LU and the 2004 IRR Program
regulations into contracts. Many Tribes have requested that the BIA
adopt a simple uniform model ISDA contract to facilitate the
contracting process, improve the timeliness of the disbursal of funds,
and ensure that the contracts used to transfer funds comply with
current (rather than now-outdated) laws and regulations.
Question 26. Why has it taken over a year for the Interior
Department to develop a simple, uniform, Indian Self-Determination Act
contract model?
Question 27. What training schedule and resources does the BIA have
to train Regional Office personnel, Tribal officials and Tribal
Technical Assistance Programs (TTAPs) in the use of the model ISDA
contract to make the contracting process less confrontational?
Question 28. What measures have the Departments put in place to
simplify and speed the process of moving IRR and BIA road maintenance
funds from the agencies to BIA Regions and Tribes?
Question 29. What does the BIA perceive to be the legal obstacles,
if any, to include provisions permitting innovative financing
techniques in Title I Indian Self-Determination Act contracts and Title
IV Self-Governance Agreements as authorized under 25 C.F.R.
Sec. 170.300 et seq.?
Timely Approval of Tribal Transportation Improvement Programs
In order to ensure that federal highway funds are spent only for
IRR projects that have been approved by the BIA and the FHWA, the IRR
Program regulations require each Tribe to prepare a Tribal
Transportation Improvement Program (TTIP) which must be approved first
by the BIA, and then by the FHWA and ultimately included on the IRR
Transportation Improvement Program (IRRTIP). Under the regulations,
Tribes may only expend funds for projects that are included on the
FHWA-approved IRRTIP. 25 C.F.R. Sec. 170.116(e). Tribes have expressed
frustration that the BIA takes an inordinately long time to approve and
update Tribal TIPs and to submit them to the FHWA for inclusion on the
IRRTIP. As a result Tribes with self-determination contracts often
cannot expend their IRR Program funds, because their projects have not
been included on the IRRTIP. In one BIA Region for example, in FY 2006
the BIA only approved the TIPS of approximately 10 percent of Tribes
with ISDA contracts with the result that the remaining Tribes have been
unable to expend their IRR Program funds.
Question 30. How long does it take on average for the BIA and FHWA
to approve and include a Tribal Transportation Improvement Program in
the IRR Program-TIP after the Tribe has submitted it to the agency?
Question 31. What mechanisms has your Agency adopted or proposed to
speed this process?
Question 32. Do the BIA and FHWA permit Tribes to submit TTIPs via
the internet and to track progress of the TTIP approval process on-
line?
Amending the Part 170 Regulations
SAFETEA-LU is almost two years old and yet the Interior Department
has not promulgated draft regulations to implement the many provisions
Congress included in that Act to improve the IRR Program and
transportation infrastructure in Indian country.
Question 33. When does the Department of the Interior plan to issue
final regulations that amend the Part 170 IRR Program regulations to
reflect the many positive provisions of SAFETEA-LU?
Question 34. What guidelines or regulations has the Department
adopted (or does it plan to adopt) to help Tribes take advantage of
their eligibility under SAFETEA-LU for the National Scenic Byways
Program, the Alternative Transportation in Parks and Pubic Lands
Program and the Transportation, Community, and System Preservation
Program?