[Senate Hearing 110-251]
[From the U.S. Government Printing 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

                              ----------                              
                                                                   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

                              ----------                              


                        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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \1\ S. Rep. No. 100-274, 100th Cong., 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 
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 CHAAG 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 CHAAG 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 CHAAG 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\
---------------------------------------------------------------------------
    \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 
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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/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?
                                 ______
                                 
 Written Questions Submitted by Hon. Byron L. Dorgan to Jerry Gidner *
---------------------------------------------------------------------------
    * Responses to written questions were not available at the time 
this hearing went to press.
---------------------------------------------------------------------------
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?