[Senate Hearing 111-917]
[From the U.S. Government Publishing Office]
S. Hrg. 111-917
EXAMINING TRIBAL TRANSPORTATION IN INDIAN COUNTRY
=======================================================================
FIELD HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 15, 2010
__________
Printed for the use of the Committee on Indian Affairs
U.S. GOVERNMENT PRINTING OFFICE
65-034 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, [email protected].
COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
JOHN BARRASSO, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota MIKE CRAPO, Idaho
MARIA CANTWELL, Washington MIKE JOHANNS, Nebraska
JON TESTER, Montana
TOM UDALL, New Mexico
AL FRANKEN, Minnesota
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on October 15, 2010................................. 1
Statement of Senator Tester...................................... 1
Witnesses
Baxter, John R., Associate Administrator for Federal Lands,
Federal Highway Administration, U.S. Department of
Transportation; accompanied by Robert Sparrow, Jr., Manager,
Indian Reservation Roads Program, Federal Highway
Administration................................................. 7
Prepared statement........................................... 9
Echo Hawk, Hon. Larry J., Assistant Secretary for Indian Affairs,
Department of the Interior; accompanied by Michael S. Black,
Director, Bureau of Indian Affairs, Department of the Interior
and Leroy Gishi, Chief, Division of Transportation, Bureau of
Indian Affairs................................................. 3
Prepared statement........................................... 4
Keel, Hon. Jefferson, President, National Congress of American
Indians (NCAI)................................................. 14
Prepared statement........................................... 15
Moran, Hon. E.T., ``Bud'' Chairman, Confederated Salish and
Kootenai Tribes................................................ 26
Prepared statement........................................... 27
Rosette, Sr., Timothy W., Chief, Environmental Health Division,
Chippewa Cree Tribe, Rocky Boy Reservation..................... 33
Prepared statement........................................... 34
Steele, Jr., James, Chairman, Montana-Wyoming Tribal Leaders
Council........................................................ 32
Smith, John P., Director, Division of Transportation, Eastern
Shoshone and Northern Arapaho Tribes........................... 39
Prepared statement with attachment........................... 40
Additional Testimony
Begay, Sampson, Chairman, Transportation and Community
Development Committee, Navajo Nation........................... 77
Prepared statement with attachment........................... 79
Hostler, Jacque, California Primary Representative; Vice
Chairperson, Indian Reservation Roads Coordinating Committee... 70
Prepared statement........................................... 72
Howlett, Kevin, Commissioner, District 1, Montana Department of
Transportation................................................. 65
Prepared statement........................................... 67
Kirn, Rick, Member, Fort Peck Assiniboine and Sioux Tribe;
Member, Fort Peck Tribal Council............................... 97
Knaus, Shirley, Vice Chairperson, Trinidad Rancheria............. 121
Lynch, Jim, Director, Montana Department of Transportation....... 64
Palmer, Richard, White Mountain Apache Tribe..................... 96
Penney, Tim, Tribal Transportation Coordinator, Federal Highway
Administration, Office of Policy............................... 122
Red Tomahawk, Hon. Pete, Director of Transportation Planning and
Development; Great Plains Region Primary Member, Indian
Reservation Roads Program Coordinating Committee, Standing Rock
Sioux Tribe.................................................... 76
Russell, Scott, Secretary, Crow Nation........................... 68
Spoonhunter, Hon. Harvey, Chairman, Wind River Indian Reservation 96
St. Goddard, Jay, Blackfeet Tribal Business Council.............. 69
Whatoname, Sr., Hon. Wilford, Chairman, Hualapai Tribe........... 97
Prepared statement with attachment........................... 98
Listening Session
Allison Binney, Majority Staff Director/Chief Counsel, Senate
Committee on Indian Affairs, presiding......................... 119
Appendix
Black Eagle, Hon. Cedric, Chairman, Apsaalooke (Crow) Nation,
prepared statement............................................. 129
Hinton, Sr., Hon. Timothy P., Vice Chairman, White Mountain
Apache Tribe, prepared statement............................... 148
King, Tracy ``Ching'', President, Fort Belknap Indian Community
Council, prepared statement with attachment.................... 151
Murphy, Hon. Charles W., Chairman, Standing Rock Sioux Tribe,
prepared statement with attachment............................. 133
North Coast Tribal Chairmen's Association (NCTCA), prepared
statement...................................................... 144
EXAMINING TRIBAL TRANSPORTATION IN INDIAN COUNTRY
----------
Friday, October 15, 2010
U.S. Senate,
Committee on Indian Affairs,
Polson, MT.
The Committee met, pursuant to notice, at 2 o'clock p.m. in
the Best Western KwaTaqNuk Resort Building, Hon. Jon Tester,
presiding.
[The hearing opened with the Pledge of Allegiance and a
blessing of the proceedings.]
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. I'd like to call this Senate Committee on
Indian Affairs Field Hearing on tribal transportation to order.
First of all, I would just say welcome to Montana to all of
you. I want to thank the members of the Confederated Salish and
Kootenai tribe for hosting us here on the beautiful Flathead
Lake at the KwaTaqNuk Resort on the shores here of the
Flathead. A beautiful spot to be. And want to thank everybody
who traveled across the country to be here today. Thank you
very much for that.
I think this is a very important hearing. And we have a
great couple panels that we're going to hear from shortly.
Once again, I want to thank Chairman Moran. I want to thank
Reuben and Tony very much for helping us open this Committee
hearing.
Today's hearing is to look into the current status of
Tribal transportation. And I look forward to sharing our
discussion today with my colleagues on the Senate Indian
Affairs Committee.
As the folks in this room know all too well, our
transportation infrastructure is critical to economic
development, creating jobs and improving the lives of everybody
who lives in Indian country.
As with other challenges facing Indian country, the
situation is getting better. Our hearing today is progress. But
we have more work to do, much more work to do.
The Committee last addressed this topic back in July of
2007. Since then we've consulted with tribes around the
country. Chairman Dorgan released draft legislation in March
2009 called the TRIP Act. The bill seeks to address many of the
issues raised at that hearing back in July of 2007 and with the
consultations that have been held. So I look forward to hearing
the views of the witnesses on that draft.
As we move forward, my priorities for any legislation are
safe roads, responsibly invested taxpayer dollars, stronger
transportation infrastructure, and more American jobs in that
process.
As with almost every issue facing Congress today, the
simple solution seems to be more money. Of course that's easier
said than done. Today's financial reality is that we're going
to have to make fewer dollars go much further. But even if we
can't find more money, it's good to ensure that it's invested
fairly and smartly. And I want to make sure we maintain roads
in Indian country to the same standard that we maintain other
roads.
I also want to make sure that community members are working
together to solve community challenges. In many instances,
reservation roads serve Indians and non-Indians alike. We need
to encourage government-to-government partnership between
tribes and state and federal agencies at every level. We have
good examples of those partnerships in Montana, and I look
forward to our witnesses talking about them today.
While we fight wars all over the world, Montanans should be
able to work across the fence with one another. I am willing to
lend a hand in that process however I can.
Today's hearing is organized slightly different than most
committee hearings. Like others, we'll have two panels of
witnesses. The first panel is comprised of government
witnesses. The second panel is comprised of tribal leaders.
The tribal leaders will tell us about their priorities for
reauthorizing the upcoming Highway Bill, their fight to
maintain funding equity and provide examples of how the
Recovery Act has improved roads and created jobs in Indian
country.
Administration witnesses will report on their efforts to
ensure funding equity, to ensure transportation dollars stretch
as far as possible in Indian country, and their plans for
including tribal leaders from the very beginning of the process
to craft the next Highway Bill.
The last part of this hearing is going to be just a bit
different. Assuming we have time, and we will have time because
we will hold our presenters to the allotted amount of time, we
will dedicate the last half hour to take public comments.
I am going to give preference to tribal officials in the
public comment period, and then we'll go to everybody else.
So with that I want to introduce the first panel. We have
the Honorable Larry J. Echo Hawk, Assistant Secretary for
Indian Affairs, Department of the Interior, Washington, D.C.
Larry, welcome to Montana. I very, very much appreciate Larry
being here today. I supported his nomination for this position
and his confirmation in the Senate. Larry is a quality
individual. He has testified before this Committee several
times, and we very much appreciate you being at this important
hearing. Thank you, Larry.
He is accompanied by Mr. Michael Black, who is the Director
of the Bureau of Indian Affairs in the Department of the
Interior in Washington, D.C. Michael, thank you very, very much
for being here today. I appreciate you guys making the trip.
We also have John R. Baxter, Associate Administrator of
Federal Lands Highway Program at the Department of
Transportation in Washington, D.C., a very, very important
position as it applies to federal lands, roads, highways and
the like.
He is accompanied by Robert Sparrow, Jr., who is the
manager of the Indian Reservation Roads Program for the Federal
Highway Administration in Washington, D.C., and your title
talks about the importance of your position in particular as it
applies to this hearing. So thank you for being here, Robert.
And then last but certainly not least, we have the
Honorable Jefferson Keel, who is the President of the National
Congress of American Indians in Washington, D.C.
Although, in past hearings we have included NCAI on the
second panel, we thought it more appropriate for them to
testify on today's first panel. Not only to honor the
principals of government-to-government relations, but also
because NCAI faces some of the same challenges that our
agencies do. They represent both urban and rural tribes with
sometimes very different perspectives and priorities. So
perhaps Jefferson can shed some light on that and how to
prioritize some of these important, yet very complex issues.
Once again, before I call on you, Larry, let me remind the
witnesses to restrict your oral testimony to five minutes. We
will make sure that your complete written testimony is a part
of the official record. But, you know, use your judgment and
try to make it--and I'm not going to be absolutely, smack-on,
cut you off, but if you tend to keep going, I'll remind you of
that.
And by the way, it's not that we don't want to hear
everything you've got to say. We do want to hear everything you
got to say. So you've got to make it as concise as possible.
And we appreciate that.
We want to thank you very much. And with that, Larry.
STATEMENT OF HON. LARRY J. ECHO HAWK, ASSISTANT
SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE
INTERIOR; ACCOMPANIED BY MICHAEL S. BLACK,
DIRECTOR, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
AND LEROY GISHI, CHIEF, DIVISION OF TRANSPORTATION, BUREAU OF
INDIAN AFFAIRS
Mr. Echo Hawk. Thank you, Senator Tester. I appreciate the
invitation to be here, especially when you made the personal
call to me. I do appreciate that personal invitation you gave
me. I wanted to mention that not only do I have the BIA
Director with me today, but the Division Chief over at BIA
Transportation, LeRoy Gishi is also with me. We want to make
sure that whatever questions are presented to us, that we give
you a detailed answer.
I want to highlight just a few points from my written
statement that's been submitted. I'll begin by just stressing
the importance of the roads in Indian country. President Obama
and Secretary Salazar have identified their top priorities as
being education, public safety and economic development. Roads
and highways are involved in all three of those top priorities.
It is vitally important that we have an adequate
transportation system in Indian country, because roads connect
tribal citizens to vital services, they provide travel to and
from school, access to medical facilities, delivery of
emergency services, access to jobs and economic markets. So the
transportation system in Indian country must be adequate and it
must be safe.
Unfortunately, we still have great needs in Indian country.
I want to note that we are very blessed to have been able to
have the ARRA funding that has made a significant difference in
our ability to repair and restore roads in the BIA Roads
Program. We have received $141 million, which led to 400
projects under that program. Under the IRR program, we've
received $225 million, which has funded 420 projects. In
addition, $50 million is being awarded to tribes contracting
directly with Federal Highways Administration. I'm very pleased
to say that the deadline that we were facing for obligating
these funds on September 30th of this year, we were able to
obligate 99.9 percent of those funds. So that is a very nice
thing to be able to report. And I want to thank all people who
made that possible.
Our next challenge is to achieve a timely outlay of these
projects. Our staff is working very hard to accomplish that.
I want to make a few comments with regard to Question 10
and the distribution of the IRR Program funds. I've been
fortunate to have some very hard-working people involved in our
coordinating committee that is spread across Indian country
representing all regions. They provide recommendations, not
only to BIA, but to the Federal Highway Administration on
policies and procedures. I thank them for their service.
But when it came to Question 10, they could not resolve the
recommendation that they would like to present. And there are
differences in Indian country about what ought to be done. So I
recall going to a meeting at the National Congress of American
Indians over a year ago in Palm Springs, and NCAI tried to
resolve that and were unable to do it. So when I was asked to
join with the Federal Highways Administration and try to
resolve that, we did it. We didn't want to be involved in any
kind of disagreement among tribes, but we were asked to do it
and we did our best.
So we have generated a proposal to try to move that
Question 10 forward. And I want to thank all the people that
have been involved in that process. We have done consultation
sessions throughout Indian country where we heard from numerous
tribal leaders. I went to assure everyone that all of those
comments are being considered. This morning we once again heard
from tribal leaders who testified and spoke at the end of our
discussions this morning to assure them that their comments
will be heard and considered as we decide how to move forward
with our proposal.
Lastly, I just want to assure the Senate Indian Affairs
Committee that within Interior and Indian Affairs, we will be
working diligently to ensure that tribal needs are met as the
reauthorization of the safety move moves forward.
Thank you very much, Senator.
[The prepared statement of Mr. Echo Hawk follows:]
Prepared Statement of Hon. Larry J. Echo Hawk, Assistant Secretary for
Indian Affairs, Department of the Interior
Good afternoon Mr. Chairman and members of the Committee. My name
is Larry Echo Hawk and I am the Assistant Secretary for Indian Affairs
at the Department of the Interior. With me today is Michael Black, the
Director of the Bureau of Indian Affairs (BIA). And also with me today
is LeRoy Gishi, the Division Chief for the BIA's 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.
Background
The BIA has been involved in the repair, construction 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 roads on
Indian Reservations. During this time, approximately $1.2 billion were
provided for both construction and maintenance of reservation roads.
The Surface Transportation Assistance Act of 1982 (Public Law 97-424)
created the Federal Lands Highways Program (Title 23 U.S. Code, Chapter
2) which established the IRR Program as a category of public roads
providing access to or within Indian reservations, lands, communities
and Alaska Native villages. This funding 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, only road maintenance funds were
appropriated through the Department of the Interior. Since the
establishment of the IRR Program, the federal construction investment
has exceeded $6 billion in the IRR system that is comprised of BIA,
tribal, state, county and local roads and bridges. The IRR Program is
jointly administered by the BIA and the Federal Highways Administration
(FHWA), which is within the Department of Transportation.
There remains a great and continued need for improving the
transportation system in Indian country. The BIA views 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
and maintained transportation systems provide increased public safety
and economic opportunities in Indian communities. Safe roads are
important when transporting people in rural areas to and from schools,
to local hospitals, and for delivering emergency services. In addition,
transportation networks in Indian and Alaska Native communities are
critical for economic development in such communities because these
transportation networks provide access to other economic markets.
The IRR Program comprises over 126,000 miles of public roads with
multiple owners, including Indian tribes, the BIA, states and counties.
Coordination among all of these owners is required in order to maximize
available resources to address transportation needs.
Road Maintenance in the BIA
The BIA currently implements both the Department of
Transportation's Highway Trust Fund-funded IRR program as well as the
Department of the Interior's (DOI) funded Road Maintenance Program. The
DOI's Road Maintenance Program has traditionally been the
responsibility of the agency owning the road. Of the 126,000 miles
roads in the IRR Program, the BIA has responsibility for 28,000 miles
of roads designated as BIA system roads. The BIA receives Tribal
Priority Allocation (TPA) funding annually for the administration of
the road maintenance program for those roads. Further, approximately 30
percent of tribes with BIA system roads within their reservation
boundaries currently operate the road maintenance program under a P.L.
93-638 self-determination contract or agreement. And of the 28,000 BIA
road miles, approximately 20,500 miles are unpaved roads. Therefore,
over 73 percent of the BIA roads are unpaved, and are, thus, considered
``inadequate'' from the perspective of the Level of Service index used
to assess roads and bridges in the BIA road system.
Question 10 of 25 CFR Part 170
In 2004, the Department of the Interior published the Final Rule
establishing the policies and procedures governing the IRR Program. See
69 Fed. Reg. 43090 (July 19, 2004), codified at 25 CFR Part 170.
Question 10, in Appendix C to Subpart C of the Final Rule, addressed a
question regarding the IRR Program's funding formula. Since 2004, the
IRR Program and Tribes have been struggling with ``Question 10'' and
the BIA and FHWA have worked to clarify the interpretation.
As background, and for the purposes of the tribal shares formula,
an ``Indian reservation road'' is a public road that is located within
or provides access to an Indian reservation, Indian trust land,
restricted Indian land, or Indian and Alaska Native villages. All
tribes receive a portion of the $450 million annual IRR Program funding
through a ``tribal share'' approach for their approved inventory of
``Indian reservation'' roads. These tribal shares are computed by a
formula based on each roads' Cost To Construct (CTC), Vehicle Miles
Traveled (VMT), and population of the tribe. Every road in the
inventory has a value associated to its CTC and VMT.
Question 10 (Q10) addresses whether a road's CTC and VMT is to
count at 100 percent in the formula calculation, or at the non-Federal
share if the road is otherwise eligible for Federal-aid funds. See 69
Fed. Reg. at 43121. The non-Federal share is the local match percentage
as established by the FHWA for federal aid system highways, which
varies from 5 percent to 20 percent. The non-Federal share is the
percentage of cost of Federal-Aid projects payable by the Federal
Government.
While the answer specified in the Final Rule was that a non-Federal
share percentage should be applied, the BIA has administered the
program with all costs counting 100 percent (except for State-owned
roads), since there was no data in the inventory to clearly distinguish
roads which were eligible for Federal funds.
The Final Rule on IRR established an IRR Program Coordinating
Committee (IRRPCC), to provide input and recommendations to both the
BIA and the FHWA in the development or revision of the IRR Program's
policy and procedures. The IRRPCC has been reviewing the Q10 issue
since August 2006 and has been unable to agree on a recommendation on
this issue. As a result, representatives from the IRRPCC requested that
the BIA and the FHWA develop a proposed clarification for Q10. This
proposal eliminates road ownership from consideration and places the
determination strictly on roadway classification. This clarification
will allow the non-Federal share percentages to be applied to the roads
that are determined to be otherwise eligible for Federal funds which
will result in a consistent application of the non-Federal share across
all roads in the IRR Program inventory.
This proposed clarification recognizes that except for BIA and
tribally owned roads (which contribute 100 percent to the CTC and VMT
regardless of functional classification, as referenced elsewhere in the
regulation) any road with a functional classification above local road
or rural minor collector will contribute its CTC and VMT at the non-
Federal share rate. This interpretation is aligned with the original
language of Q10. Given the length of time this provision has been
administered under a less than clear interpretation, any change will
create questions from various locations where tribes may lose funding.
However, until the work during the transition year is complete, the
overall impacts to specific tribes will not be known. Nonetheless,
since June of this calendar year, the BIA and the FHWA have held 10
regional tribal consultation meetings on this proposed interpretation
of Q10.
It is anticipated that the proposed clarification of Q10 will
appropriately move the focus of discussions surrounding the IRR Program
roads inventory and funding process from Q10 to the broader issues of
the quality, physical size and composition of the IRR Program roads
inventory. Achieving consistency in the IRR Program roads inventory is
an on-going effort involving training, process improvements, and
establishing consistent parameters that will require a dedicated effort
from all parties over the next 2 to 3 years.
American Recovery and Reinvestment Act (ARRA)
On February 17, 2009, President Obama signed into law the American
Recovery and Reinvestment Act of 2009 (Public Law 111-5) (ARRA). ARRA
provided supplemental funding for infrastructure investment in Indian
Country. A portion of ARRA funding was provided to the IRR Program
within Indian Affairs, subject to certain restrictions and
requirements. ARRA offered a unique opportunity to make tangible
improvements to Indian communities, while promoting economic recovery
through the preservation and creation of jobs.
As of September 30, 2010, 99.9 percent of the available funds for
both Repair and Restoration of BIA roads and bridges and the
construction and reconstruction of IRR Program facilities were
obligated to projects approved by the Secretaries of the Department of
the Interior and the Department of Transportation. Within the Repair
and Restoration of BIA roads program, approximately 400 projects were
awarded over $141 million. Within the IRR Program, approximately 420
projects were awarded over $225 million. In addition, over $50 million
was awarded to tribes contracting directly with the FHWA. Outlays for
these programs under ARRA funding within the Department were 37 percent
or $83 million for the IRR program and 53 percent or $75 million for
the Repair and Restoration program.
ARRA funds made a significant contribution to improving
transportation facilities in Indian Country. Each eligible tribe was
given the opportunity to receive maintenance and construction
improvements on their BIA and IRR Program facilities (roads, bridges,
transit structures, docks, boardwalks, etc). In addition, the
provisions of ARRA authorized the Secretary of Transportation to
redistribute unobligated funds to projects submitted by tribes based on
a call for projects in February 2010. The total ARRA funding
redistributed by both agencies was approximately $22.5 million. One
such project from redistributed unobligated funds was a project
submitted by the Chippewa Cree Tribe of the Rocky Boy Indian
Reservation in Montana. This project was a priority project for the
Tribe because of the unsafe nature of the roadway alignment, which
resulted in several severe accidents. This project was reviewed and
scored in accordance with the provisions established by the BIA and the
FHWA. The Chippewa Cree Tribe's project was awarded the amount
requested by the Tribe, in the amount exceeding $1.7 million. Likewise
other tribes with annual allocations that were not enough to meet the
needs of their priority projects were able to submit projects for
review and consideration. These tribes received funds totaling over $15
million.
Reauthorization of SAFETEA-LU
The BIA, along with other Federal Land Management agencies within
the Department, have and will continue to coordinate with each other in
the development of the Administration's proposal for the
reauthorization of the Safe, Accountable, Flexible, Efficient
Transportation Equity: A Legacy for Users (SAFETEA-LU Act). The need
for prompt and immediate reauthorization of the SAFETEA-LU Act is
crucial to tribal governments who rely on early notification of their
tribal shares from the funding formula to plan their priority projects.
The numerous short term extensions of SAFETEA-LU result in infrequent
and delayed allocations to the tribes and have also resulted in late
planning and obligations to tribal contracts. These delays force
projects to be delayed as much as one year. The BIA commits to work
with the Department to advance the reauthorization of SAFETEA-LU in the
near future.
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.
Senator Tester. Thank you, Larry. And we will have
questions after everybody gets done on the first panel.
John Baxter's next.
STATEMENT OF JOHN R. BAXTER, ASSOCIATE
ADMINISTRATOR FOR FEDERAL LANDS, FEDERAL HIGHWAY
ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION; ACCOMPANIED
BY ROBERT SPARROW, JR., MANAGER,
INDIAN RESERVATION ROADS PROGRAM, FEDERAL
HIGHWAY ADMINISTRATION
Mr. Baxter. Senator Tester, thank you for inviting me to
testify today on the transportation issues facing the Native
American communities and the programs that the Federal Highway
Administration administers to this tribe in addressing these
challenges. I thank you for making my full statement part of
the record for this hearing.
The Indian reservation road system consists of more than
126,000 miles of road and 8,000 bridges that link housing,
schools, emergency services and work places as well as
facilitate tourism and resource use. Millions of vehicle miles
are travelled annually on the Indian reservation road system,
even though it's among the most rudimentary of any
transportation at work for the United States.
More than 60 percent of the system is unpaved and about 24
percent of the bridges are classified as deficient. These
conditions make basic travel associated with the community
difficult for residents of tribal communities. We are committed
to providing safe, efficient transportation to both residents
and visitors to and within Indian lands and Alaska Native
villages, while protecting the environment and cultural
resources.
The Indian Reservation Roads Program administered by FHWA
in partnership with the Bureau of Indian Affairs serves over
560 federally recognized Indian tribes and Alaska Native
villages in 32 states.
In many cases this is the only program where we have a
source of funds for transportation improvements.
Today I'd like to focus on three key areas where our agency
has been working to address transportation challenges in Indian
country. These areas include safety, outreach and capacity
building, and implementation of the Recovery Act.
Despite reaching record-low traffic deaths last year on all
the nation's roads, the annual fatality rate on Indian
reservation roads is still more than three times the national
average. To address this serious problem the FHWA has co-
sponsored seven state-based safety summits in the past two
years focused on this issue and to bring safety partners
together. More of these summits are planned for this year.
The agency also continues to implement safety-based
programs such as the Highway Safety Improvement Program and the
Safe Routes to School Program, which benefits tribes as well as
states and are aimed at reducing crash fatalities and injuries
on public roads through the implementation of infrastructure
improvements.
The Highway Safety Improvement Program funds have been used
in Montana to provide improvements such as the installation of
variable message signs on U.S. 2 on the Blackfeet reservation
and the addition of a left-turn bay on U.S. 93 on the Flathead
reservation. And the Montana Department of Transportation
provided over $50,000 for Safe Routes to School funds for the
city of Ronan for the design and construction of hard-surfaced
bicycle and pedestrian paths, lighting, and installation of
seven bike racks at the Ronan Elementary School within the
Flathead reservation just south of here.
In addition, FHWA supports tribes for outreach and
capacity-building programs. The agency maintains seven tribal
technical assistance program centers that provide a variety of
training and professional and development programs, technology
updates and technical assistance to improve road management and
safety. These centers are a key resource for basic services and
have helped many tribes to become self-sufficient as sovereign
nations in transportation delivery.
The Recovery Act supplemented safety funding for tribal
communities by providing additional $310 million for the Indian
Reservation Roads Program. FHWA and BIA have worked diligently
to ensure that the Recovery Act funds for these projects were
distributed quickly and wisely. And as it has already been
noted, nearly 99.9 percent of the Recovery Act were obligated
to tribes for eligible and other infrastructure-related
projects, including improving roads that provide critical links
between tribal residences and vital community services such as
schools and health care facilities.
In addition, the Recovery Act TIGER funds are being used in
the Mission Valley and Lake County for road paving and
construction and will improve connectivity and create a safer,
more convenient transportation system for residents of the
county and the Flathead Indian Reservation.
We recognize that transportation is a critical tool for
tribes to improve the quality of life and the economy in our
communities. FHWA is committed to improving transportation
access to and through tribal lands by providing safe and
innovative roadways that blend into or enhance the existing
environment by providing technical services to the
transportation community and by coordinating our efforts with
partnering agencies and tribes such as BIA.
We're also focused on building more effective day-to-day
working relationships with Indian tribes with respect to rights
of self-government and self-determination based on the
principals of tribal sovereignty.
Senator Tester, thank you for the opportunity to testify
and I'll be pleased to answer your questions.
[The prepared statement of Mr. Baxter follows:]
Prepared Statement of John R. Baxter, Associate Administrator for
Federal Lands, Federal Highway Administration, U.S. Department of
Transportation
Chairman Dorgan, Senator Tester, and Members of the Committee,
thank you for the opportunity to testify today regarding transportation
issues facing Native American communities and programs administered by
the Federal Highway Administration (FHWA) that provide support to
Tribes for addressing these issues.
President Obama's meeting in November 2009 with tribal leaders from
across the Nation signaled the start of a new and stronger relationship
between the Tribes and the Federal Government. The President made very
clear that Native Americans will not be forgotten by this
Administration, and he gave his strong commitment to addressing tribal
issues and concerns. By establishing an Office of Tribal Liaison within
the White House, the President has made sure that Native Americans will
have a seat at the table when issues, including the economy, education,
health care, and the environment, are being discussed--issues which can
all involve transportation.
Secretary LaHood shares President Obama's commitment to addressing
tribal issues and concerns. This past spring, the Secretary spoke
before the National Congress of American Indians, emphasizing the
Department's commitment to improving existing tribal transportation
programs by seeking tribal input on important regulations, providing
timely technical assistance, and ensuring tribes are given ample
opportunities to compete for grants. The Department also finalized its
Tribal Consultation Plan, a detailed plan of action the agency will
take when developing, changing, or implementing policies, programs, or
services with tribal implications.
In addition, Secretary LaHood has made livability a key objective
for transportation. This initiative is not a one-size-fits-all
approach--we recognize that transportation needs for tribes are often
different than what we see needed elsewhere in the U.S. transportation
network. In much of this country, we take for granted that roads and
highways will be there for children to reach their schools, for
emergency vehicles to reach those in need of medical care, and for
members of the community to get to work. But, in Indian Country, you
cannot always make that assumption. Moreover, tribal communities need
good roads to support their economic development.
FHWA has a long history of supporting tribal governments' rights to
self-determination and working directly with Tribes in a government-to-
government relationship. FHWA's top leadership continues to meet
directly with tribal government elected officials and transportation
staff, and is committed to delivering a transportation program that
works for all Tribes whether they are large or small.
FHWA has sought to improve the state of tribal transportation by
working directly with tribal governments to improve Tribes' technical
capacity, to improve safety on reservations and native communities, and
to foster partnerships between tribal governments, Federal agencies,
and State DOTs.
The Indian Reservation Roads (IRR) program, administered by FHWA in
partnership with the Bureau of Indian Affairs (BIA), is critical to
tribal communities to support tribal transportation needs. In many
cases, it is the only source of revenue for transportation
improvements. In working through FHWA's partnership with the Tribes and
the BIA, the IRR program seeks to balance transportation mobility and
safety goals with the environmental and cultural values of tribal
lands. FHWA also works with the Federal Transit Administration and the
National Highway Traffic Safety Administration (NHTSA) in coordinating
transportation programs that focus on planning, safety, and
construction of roads and transit services to and on reservations and
serving Alaska Native villages.
Overview
The IRR system of roads provides access to and within Indian
reservations, Indian trust land, restricted Indian land, eligible
Indian communities, and Alaska Native villages. The IRR system consists
of more than 120,000 miles of roads which link housing, schools,
emergency services, places of employment, and facilitate tourism and
resource use. Almost eleven 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. More than 60 percent of
the system is unpaved. If only BIA and tribal roads of the IRR system
are considered, this number increases to over 80 percent. Within the
system, there are more than 8,000 bridges and approximately 24 percent
of these 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 most basic
needs for a livable community.
The poor road quality on tribal lands also affects safety. Last
year, Secretary LaHood announced that the number of traffic deaths on
U.S. roads reached a record low. Despite the gains we have made on
other systems, the annual fatality rate on Indian reservation roads
continues to be more than three times the national average. Safety
continues to be the Department's top priority, and FHWA is working
closely with tribes, the BIA, NHTSA, and others to address this
disproportionate level of fatalities on tribal roads.
The IRR program, established in section 204 of title 23, United
States Code, is the largest Federal Lands Highway (FLH) program, and it
is unique due to the relationship with Federally-recognized Indian
Tribal Governments under the program. The IRR program serves over 560
Federally-recognized Indian Tribes and Alaska Native villages in 32
States. FHWA co-administers the IRR program with the BIA under an
agreement originating in 1948 and a Stewardship Plan from July 1996.
IRR program funding has grown significantly under the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU), from a program size of $275 million annually
under the Transportation Equity Act for the 21st Century (TEA-21) to
$450 million annually today. This equates to a total of $2.42 billion
over the life of SAFETEA-LU, including the recent extensions through
the end of this calendar year. These funds have been distributed
according to a tribal shares formula, which was developed through a
negotiated rulemaking with tribal governments. SAFETEA-LU also
increased the eligible uses of IRR program funds by allowing a Tribe to
use up to 25 percent of its share of funds for road and bridge
maintenance activities. This change allowed Tribes to supplement the
funding they receive annually from the Department of the Interior (DOI)
for maintenance activities. It allowed the Tribes to address critical
safety, snow removal, and pavement preservation issues that otherwise
could not be addressed. The increased funding and programmatic changes
provided in SAFETEA-LU for the IRR program, along with an additional
$310 million provided by the American Recovery and Reinvestment Act of
2009 (Recovery Act), discussed below, have provided tools and resources
to substantially improve tribal transportation. Despite progress,
however, much work remains.
Safety Programs
Safety remains a significant issue in Indian Country. Native
Americans are overrepresented in several fatality categories--including
individuals under the age of 35, unbelted drivers, and individuals
driving under the influence of alcohol. Seven State-based summits have
been held in the past two years to focus on the subject and to bring
the many safety partners together to discuss the safety issues
affecting them. FHWA and NHTSA will continue these summits in the
future to promote safety strategies across the four E's of safety--
engineering, enforcement, education, and emergency medical services.
Strategies such as Road Safety Audits and community based enforcement
are proving to be effective tools for reducing fatalities.
Highway Safety Improvement Program
The Highway Safety Improvement Program (HSIP) was established by
SAFETEA-LU with the overall purpose of achieving a significant
reduction in traffic fatalities and serious injuries on all public
roads through the implementation of infrastructure-related highway
safety improvements. Since the program's inception, HSIP funding has
been utilized for tribal lands projects across the country.
In Montana, for example, two HSIP construction projects totaling
$1.88 million provided improvements such as the installation of
Variable Message Signs on US-2 on the Blackfeet Reservation and the
addition of a left-turn bay on US-93 on the Flathead Reservation.
A $107,650 HSIP project in North Carolina along US-74 from the
Haywood County line to NC-28 (North), in Cherokee Nation, funded the
installation of milled rumble strips on the median and outside
shoulders.
In North Dakota, two HSIP projects totaling $300,000 provided
improvements along State highways within reservation boundaries of
Standing Rock Reservation and Fort Berthold Reservation. Such
improvements included the installation of shoulder and centerline
rumble strips along State Highways 23 and 24.
In Wisconsin, a $316,000 HSIP project was undertaken by the
Wisconsin DOT along with the Forest County Potawatomi Tribe to improve
a Tribal owned intersection at Everybody's Road and USH 8 in Forest
County. The intersection project was combined with $900,000 BIA funds
and $74,000 Tribal funds to construct a newly relocated intersection
and frontage road (Everybody's Road) that leads to the Tribal
headquarters offices and Tribal Community Center.
Safe Routes to School
The Safe Routes to School (SRTS) 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 fund planning, design, and construction of
infrastructure-related projects that will improve the ability of
students to walk and bicycle to school. A portion of each State's SRTS
funding must also be used for non-infrastructure-related activities to
encourage walking and bicycling to school. Federally-recognized Tribes
are eligible sub-recipients of this State administered program.
Several States are working with Tribes to promote the SRTS program.
For example, the Montana DOT provided $51,823 in SRTS funds to the City
of Ronan for the design and construction of approximately 400 lineal
feet of hard-surfaced bicycle and pedestrian path, lighting, and
installation of 8 bike racks at the Ronan elementary school within the
Flathead reservation. The Washington DOT provided SRTS funds to the
Taholah School District, serving the Quinault Indian Nation, for
infrastructure, enforcement and education activities. In South Dakota,
the DOT provided $15,815 in SRTS funds to the Sisseton-Wahpeton Oyate's
Enemy Swim Day School for a trail to the school.
Section 402 State and Community Highway Safety Grant Funds
NHTSA provides safety grant funds to the Secretary of the Interior
to save lives, prevent injuries, and reduce economic loss due to motor
vehicle related crashes on Tribal land. The BIA administers the funds,
known as the Section 402 State and Community Highway Safety Grant
Funds. NHTSA provides technical assistance to Tribes through
partnership with BIA.
SAFETEA-LU Funding for Tribal Transportation
Although the IRR program is the principal funding source for tribal
roads, these roads are eligible to receive funding under other SAFETEA-
LU programs as well.
Indian Reservation Roads Bridge Program (IRRBP)
The Indian Reservation Roads Bridge Program (IRRBP) was established
under TEA-21 and funded through a $13 million takedown from the primary
IRR Program. The program's purpose was to provide funding for
reconstruction or rehabilitation of structurally deficient or
functionally obsolete IRR bridges. SAFETEA-LU amended the IRRBP by
establishing it as an independently funded program, authorized at $14
million per year, and allowing design activities to be funded. FHWA
coordinated with the Indian Reservation Roads Program Coordinating
Committee to implement these legislative changes. Since its inception
in TEA-21, the IRRBP has provided more than $165 million in funding to
nearly 300 different bridge projects in Indian Country.
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). SAFETEA-LU authorized the Secretary of
Transportation to make grants from this program directly to Indian
Tribes and to allow 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 an All-American
Road.
FHWA has participated in tribal transportation conferences to
inform Tribes of these changes to the National Scenic Byways Program.
FHWA also worked with the America's Byways Resource Center (in Duluth,
Minnesota) to establish a tribal liaison position within the Resource
Center to provide technical assistance to Indian Tribes for
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. In fiscal
year 2009, Tribes submitted 10 applications directly to FHWA and two
applications through the State departments of transportation,
requesting a total of $1.85 million. The Department selected seven of
the projects, providing a total of $945,232 in funding.
Public Lands Discretionary Program
The Public Lands Highway Discretionary program provides funding to
any project eligible under title 23, United States Code, which is
within, adjacent to, or provides access to tribal or Federal public
lands. It is another source of funding that is available to Tribes for
their transportation needs. During SAFETEA-LU, nearly $480 million
dollars was made available through this program. Of the $480 million,
$52 million was provided for 62 tribal related transportation projects.
FHWA Implementation of SAFETEA-LU Requirements for Tribal
Transportation
In addition to increased funding, SAFETEA-LU brought about many
changes in how the IRR program is administered and to the roles and
responsibilities of all parties involved in transportation delivery to
tribal communities. Prior to SAFETEA-LU, FHWA's role was to provide
stewardship and oversight to the IRR program from a national
perspective, and the BIA's role was to work with the Tribes by
delivering the funds and providing technical assistance. With the
passage of SAFETEA-LU, Tribes now have the option to enter into IRR
Program Funding Agreements and work directly with FHWA for their IRR
Program share as long as they meet financial audit and management
capacity requirements. The number of Tribes electing this option has
grown from three the first year to more than 75 Tribes today, with
several more Tribes expressing an interest to FHWA.
In response to this increase in the number of Tribes, and increased
stewardship and oversight responsibilities, the Federal Lands Highway
(FLH) Office, which has direct responsibility for administering the IRR
program, has increased staffing and worked closely with the Tribes to
develop program guidance. In addition to carrying out numerous face-to-
face meetings with each Tribe and conducting outreach and training
through webinars, regional conferences, and organized classes, FLH
developed a new program manual for all Tribes, States, counties, and
Federal agencies that communicates program expectations, roles and
responsibilities, and best practices.
National Indian Reservation Road Inventory
SAFETEA-LU directed FHWA to complete a comprehensive national
inventory of IRR eligible transportation facilities and submit a Report
to Congress. The purpose of the inventory study was 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; thus, it is critical that data in the inventory be as
accurate as possible.
FHWA completed and delivered the required Report to Congress in
2008. The Report outlined our assessment of the inventory process,
including its accuracy and consistency of application. The Report
included the identification of more than 100,000 miles of road as well
as recommendations for improvement and additional study areas. Since
issuance of the Report, the inventory has grown to more than 125,000
miles of road. As a result of the Report and issues that have arisen
from the Question 10 series of consultations, FHWA and BIA will work
together to review more than 75 percent of the inventory data this
coming year. This work will clarify programmatic definitions and
correct inventory errors and omissions to produce a more accurate data
system. Ultimately, the inventory will reflect the needs of tribal road
transportation and serve as an important tool to help make the program
fair and equitable for all tribes.
Outreach and Capacity Building
Road Safety Audits and Safety Trainings
Strategies such as Road Safety Audits (RSAs) and community based
enforcement are proving to be effective tools for reducing fatalities
on tribal lands. The FHWA Office of Safety sponsors training on Road
Safety Fundamentals and RSAs, and works with State and local
jurisdictions and tribal governments to integrate RSAs into the project
development process for new and existing roads and intersections.
RSAs examine the safety performance of an existing or future road
or intersection by an independent, multidisciplinary team. They
estimate and report on potential road safety issues and identify
opportunities for improvements in safety for all road users. RSAs
enable localities and Indian tribes with little or no safety data to
get an expert assessment on how to improve the safety of their roads.
RSAs were funded by FHWA's Office of Safety from the Surface
Transportation Research Development and Deployment Program for the
following tribal organizations-- Tohono O'odham and Navajo Nations in
Arizona; Santa Clara Pueblo and Jemez Springs Pueblo, New Mexico;
Standing Rock Sioux, North Dakota; the Eastern Band of Cherokee
Indians, North Carolina; the Navajo Nation, Utah; and Red Cliff Band of
Lake Superior. These RSAs were carried out in cooperation with State
DOTs.
Research and Development
FHWA has launched a cross-functional initiative to address tribal
transportation safety problems through research and practical
applications. The project will support the development and adoption of
the Tribal Safety Management System, which has been identified by a
multi-agency committee as a key strategy to assist Native American
Tribes in addressing transportation safety problems. The initiative
will develop and implement comprehensive safety program templates that
Tribes can use and tailor to their specific needs. The initiative also
includes a pilot program in 3 tribal nations, the results of which will
be included in a report showing the benefits, challenges, and lessons
learned from the implementation of highway safety programs.
Tribal Technical Assistance Program
Tribes report that education and training remain significant
challenges. Many Tribes do not have a sustainable level of
transportation expertise, given their size and resources. The FHWA
supports a tribal transportation assistance program with seven centers
serving Indian Country. These Tribal Technical Assistance Program
(TTAP) centers provide a variety of training and professional
development programs, technology updates, and technical assistance to
enhance road management and safety. They are a key resource for basic
services and to help many Tribes become self-sufficient as sovereign
nations in transportation delivery. 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.
FHWA, through the TTAPs, 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 TTAP to sponsor
a Road Safety Audit Outreach Coordinator, who has provided training and
RSAs for the Spirit Lake Nation, the Winnebago Tribe of Nebraska, and
others.
While FHWA has remained focused on implementing SAFETEA-LU since
its enactment, the Agency has also been recently hard at work ensuring
that Tribes use the much needed supplemental resources provided by the
Recovery Act.
American Recovery and Reinvestment Act of 2009
In addition to SAFETEA-LU funding, the Recovery Act has
supplemented funding for tribal communities by providing an additional
$310 million for the IRR program. Since the Recovery Act was signed
into law by President Obama on February 17, 2009, FHWA and BIA have
worked diligently to ensure that the funds for these projects are
distributed quickly, wisely, and with unprecedented transparency and
accountability. The Federally-recognized Tribes were eligible to
receive Recovery Act funding based on the IRR formula, which takes into
account the highway projects' estimated construction cost, volume of
traffic along the route, and the Tribe's current population. Much of
the IRR portion of the Recovery Act has been dedicated to improving
roads that provide critical links between tribal residences and vital
community services such as schools and health care facilities. More
than 99.9 percent of these Recovery Act were obligated.
In the summer of 2009, the Blackfeet Indian Tribe awarded a project
for $916,068 to improve a 14-mile segment of road known as the Starr
School Road. This nearly-completed project will provide for a safer
facility for school buses and other school traffic through sign
replacement, new right of way fences, and new roadway striping.
Drainage and pavement improvements will extend the life of the
facility.
On February 17, 2010, the one-year anniversary of the Recovery Act,
Secretary LaHood announced $1.5 billion in Transportation Investment
Generating Economic Recovery (TIGER) Grant awards for 51 projects
nationwide. The Department could provide awards to fewer than 3 percent
of the more than 1,400 applicants, who submitted more than $60 billion
in applications for this $1.5 billion program.
TIGER funds are being used for an important project in the Mission
Valley in Lake County, Montana which overlays most of the Flathead
Indian Reservation. This $12 million project is to upgrade city and
county roads and increase the safety and transportation options in this
predominantly rural area. Road paving and construction will improve
connectivity and create a safer and more convenient transportation
system for residents of the county and the Flathead Indian Reservation,
including the Confederated Salish and Koontenai Tribes. The project
also includes vital improvements to Skyline Drive, a road near the city
of Polson, which the Montana DOT identified as a safety risk.
FHWA, along with BIA and with input from Tribes, developed a
process that described the requirements for Tribes to receive and
obligate their share of Recovery Act funding and focused on assuring
obligation of the majority of the $310 million before the end of this
past fiscal year. FHWA and BIA developed guidance to ensure a fair and
transparent process to redistribute funds for cases where funds would
otherwise not get obligated. The redistribution of more than $22.5
million to approximately 25 Tribes nationwide helped ensure the
efficient and effective use of Recovery Act funds.
Conclusion
Transportation is a critical tool for Tribes to improve the quality
of life in their communities. The challenges 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. The
Department is committed to improving transportation access to and
through tribal lands through stewardship of Federal Lands Highway
programs by providing balanced, safe, and innovative roadways that
blend into or enhance the existing environment; and by providing
technical services to the transportation community. We are also
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.
Members, thank you again for this opportunity to testify. I will be
pleased to answer any questions you may have.
Senator Tester. Thank you, John. Next we'll hear from the
National Congress of American Indians, Jefferson Keel.
STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, NATIONAL CONGRESS
OF AMERICA INDIANS
Mr. Keel. Thank you, Senator. On behalf of National
Congress of American Indians, I want to thank you for the
opportunity to testify and provide information regarding the
tribal transportation infrastructure. Thank you.
Indian reservation roads comprise over 120,000 miles of
public roads with multiple owners including the Bureau of
Indian Affairs, Indian tribes, states and counties.
Indian reservation roads are the most underdeveloped road
network in the nation, yet it's the primary transportation
systems for all residents of and visitors to American Indian
land and Alaska Native communities.
Over 66 percent of the system is unimproved earth and
gravel. Approximately 24 percent of Indian reservation bridges
were classified as deficient. In many places there are no roads
and bridges to begin with, forcing huge travel distances on
inadequate roads. These conditions make it very difficult for
residents of tribal communities to travel to hospitals, stores,
schools and employment centers.
Next year we anticipate that Congress will reauthorize the
federal transportation programs. And it's vital that the Indian
Reservation Roads Program receives significant increases in
funding. Lives and livelihoods depend on it.
NCAI urges Congress to increase the funding for all tribal
transportation programs to address the deficiency with road
construction and maintenance, to continue to build upon the
current infrastructure, and increase technical assistance to
tribal governments.
Indian people suffer from injury and death by driving and
walking along reservation roadways with rates far above the
national average, as you've already heard. Shocking data showed
thousands of fatal motor vehicle crashes on Indian reservation
roads and the trend is increasing. While the number of fatal
crashes per year has declined 2.2 percent nationally, the
number of fatal motor vehicle crashes on Indian reservations
increased over 52 percent.
American Indians also have the highest rate of pedestrian
injury and death per capita of any racial or ethnic group in
the United States.
NCAI recommends that Congress use the 2 percent tribal
funding set aside within the High Risk Rural Roads Program to
create a new Tribal Traffic Safety Program. And increase the
funding for Tribal Safety Program to $50 million annually and
to improve the unsafe road systems on tribal lands.
Indian country has over 741 public schools and over 82,000
native students. The Bureau of Indian Education serves over
50,000 students and 181 elementary and secondary schools. Many
of these schools are located in remote and rural areas.
The Safe Route to School program provides funds to states
to improve the ability for primary/middle school students to
safely walk and bike to school. Unfortunately BIE schools are
not eligible for this program. There's no information on
whether public schools in Indian country receive anything from
the program.
NCAI is encouraged that Congress is exploring alternate
sources of revenue for the Highway Trust Fund. Simply put, the
system is founded on a combination of federal gas taxes and
state gas taxes. Indian reservation roads have not equitably
benefitted from either of these sources of revenue.
Given the dire conditions of reservation roads, it is
unconscionable that the Reservation Roads Program does not
enjoy parity with the amount given to other governments through
the Highway Trust Fund. NCAI feels strongly that this inequity
of distribution must be addressed in any system devised to fund
transportation systems across the nation.
NCAI is working with tribal governments to improve and
build upon the successes of the last transportation
reauthorization, because transportation infrastructure is vital
to the enhancement of Indian governments and sovereignty.
We look forward to working with this Committee on tribal-
specific transportation issues. Thank you.
[The prepared statement of Mr. Keel follows:]
Prepared Statement of Hon. Jefferson Keel, President, National Congress
of American Indians (NCAI)
On behalf of the National Congress of American Indians (NCAI),
thank you for the opportunity to testify on tribal transportation in
Indian Country. NCAI is the oldest and largest national organization in
the United States and is steadfastly dedicated to protecting the rights
of tribal governments to achieve self-determination and self-
sufficiency. NCAI applauds the Senate Committee on Indian Affairs for
examining the tribal transportation infrastructure. NCAI looks forward
to working with members of this Committee to enhance investments in
infrastructure development such as transportation.
Indian Reservation Roads comprise over 120,000 miles of public
roads with multiple owners, including the Bureau of Indian Affairs,
Indian tribes, states and counties. Indian Reservation Roads are the
most underdeveloped road network in the nation \1\--yet it is the
primary transportation system for all residents of and visitors to
American Indian and Alaska Native communities. Over 66 percent of the
system is unimproved earth and gravel. Approximately 24 percent of
Indian Reservation Roads Program (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. \2\
---------------------------------------------------------------------------
\1\ Bureau of Indian Affairs, Transportation Serving Native
American Lands: TEA-21 Reauthorization Resource Paper (2003).
\2\ Statement of John Baxtor, Administrator of Federal Lands, FHWA,
U.S. DOT, Hearing on Transportation issues in Indian Country Before
Senate Comm. on Indian Affairs, 110th Cong. 1 (2007).
---------------------------------------------------------------------------
In 2005, the enactment of the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU),
Public Law 109-59, authorized the U.S. Department of Transportation
(USDOT) to administer and distribute billions of dollars of highway,
transit and other transportation-related funding to federal, Tribal,
state and local transportation departments. Included in SAFETEA-LU were
several significant tribal provisions: providing an increase in funding
for Indian Reservation Roads Program; creating a new specific funding
set-aside to address the condition of bridges on tribal lands;
initiating a new tribally-specific transit program that would provide
much needed funding for tribes; and establishing within the office of
the Transportation Secretary, a Deputy Assistant Secretary for Tribal
Government Affairs to plan, coordinate, and implement the Department of
Transportation policy and programs. In addition, SAFETEA-LU provided
important changes in the IRR program. IRR funding can now be provided
through a funding agreement in accordance with the Indian Self-
Determination and Education Assistance Act as long as the requesting
tribal government has satisfactorily demonstrated financial stability
and financial management to the Secretary of Transportation.
Transportation infrastructure development is critical to economic
development, creating jobs, and improving living conditions for
individuals and families in Indian Country. Construction of
transportation systems that allows for safe travel and promotes
economic expansion will help us strengthen our tribal communities while
at the same time making valuable contributions to much of rural
America. Surface transportation in Indian Country involves thousands of
miles of roads, bridges, and highways. It connects and serves both
tribal and non-tribal communities.
Funding
In SAFETEA-LU, tribal transportation programs within the Department
of Transportation have received the following funding levels. Funding
for the Indian Reservation Roads Program (IRR) was $300,000,000 for
Fiscal Year 2005, and steadily increased each fiscal year to
$450,000,000 for Fiscal Year 2009; funding for the IRR Bridge Program
stayed at $14 million for Fiscal Years 2005 through 2009; Public
Transportation on Indian Reservations Section 5311(c), was funded at
$8,000,000 for Fiscal Year 2006, and gradually increased each fiscal
year to $15,000,00 for Fiscal Year 2009. These funding levels were
maintained in FY 2010 for tribal transportation programs through DOT.
Indian Reservation Roads Program
The officials at the Departments of Interior and Transportation
have recognized that transportation systems within Indian Country are
suffering from a nearly $40 billion construction backlog. An equaling
distressing deferred maintenance backlog exists for Tribal
transportation facilities. Rising construction inflation rates continue
to diminish the purchasing power of the limited federal funds currently
provided to the IRR Program and other Tribal transportation programs.
Even solid Tribal roads and bridges fall into disrepair and require
costly reconstruction years before the end of their design life due to
a lack of more cost-effective maintenance funding. Under any
assessment, Tribal transportation programs remain severely underfunded
and the construction and maintenance funding backlog will only get
worse without significant funding increases during the next highway
reauthorization period.
To address the deficiencies of road construction and maintenance in
the upcoming reauthorization, we encourage this Committee to recommend
to Congress an increase in the funding level for IRR Program to
$800,000,000 for Fiscal Year 2013; $850,000,000 for Fiscal Year 2014;
$900,000,000 for Fiscal Year 2015; $950,000,000 for Fiscal Year 2016;
$1,000,000,000 for Fiscal Year 2017; and $1,050,000,000 for Fiscal Year
2018. For the IRR Bridge Program, NCAI recommends $75,000,000 for
Fiscal Year 2013; $87,500,000 for Fiscal Year 2014; $100,000,000 for
Fiscal Year 2015; $100,000,000 for Fiscal Year 2016; $100,000,000 for
Fiscal Year 2017; and $100,000,000 for Fiscal Year 2018.
Public Transportation on Indian Reservations
Since the enactment of SAFETEA-LU, the Transportation on Indian
Reservations Section 5311(c), also known as the Tribal Transit Program,
has been very successful. In the first year of operation, 63 tribes
were awarded transit funding. This program brings severely needed
transit services to Indian Country so that tribes can provide much
needed transportation access to employment, health services, education,
and business opportunities for tribal members.
While tribal transit systems continue to develop and thrive, the
funding authorized in SAFETEA-LU barely addresses the transit needs in
Indian Country and tribal governments need additional funding to
adequately address the transit services in Indian Country. NCAI
recommends funding for the Tribal Transit Grant Program to be increased
to $35 million for Fiscal Year 2013 with continuing increases of $10
million for every year thereafter to $85 million. NCAI also recommends
raising the cap for Transit Planning Grants to $50,000. Currently,
tribes are capped at $25,000 to use for planning and design. This cap
is a hindrance for tribes who do not possess the financial resources to
initially establish a reliable transit system on their tribal land.
SAFETEA-LU allowed Indian tribes to pursue improved public
transportation for their tribal communities, however there continues to
be significant need in Indian Country.
Tribal Technical Assistance Program (TTAP)
The TTAPs are the only technical assistance program that provides
much needed education, research, and training to tribal governments.
There are currently 7 TTAP centers located around the country that
serve all the tribes in different regions. TTAP is funded by both the
Federal Highway Administration (FHWA) and Bureau of Indian Affairs
(BIA). Currently, each TTAP receives $280,000 a year in total funding,
which is comprised of $140,000 from the Local Technical Assistance
Program and $140,000 from the IRR program. This totals about $1.9
million for the overall TTAP funding each fiscal year to serve all 565
federally-recognized tribes.
To ensure that the TTAPs are able to meet the increased demand for
their services as additional tribes assume responsibility for
administering their transportation programs, NCAI recommends Congress
to have the Department of Transportation institute a TTAP for each of
the twelve BIA Regions. Additionally, NCAI recommends an increase to
the overall funding of TTAPs from $1.9 million to $4.2 million each
fiscal year. This much needed funding will assist each TTAP center to
adequately address the increasing need for transportation technical
assistances.
Safety
State governments spend between $4,000 and $5,000 per road mile on
maintaining state roads and highways. While in Indian Country, by
contrast, road maintenance funding is less than $500 spent per road
mile. Indian Country has an unmet immediate need of well over $258
million in maintenance funding for roads and bridges, and $310 million
in unmet need for new roads and bridges projects.
Tribal members and communities are threatened by unsafe and often
inaccessible roads, bridges and ferries. Indian people suffer from
injury and death by driving and walking along reservation roadways at
rates far above the national average. Data shows 5,962 fatal motor
vehicle crashes were reported on Indian reservation roads between 1975
and 2002 with 7,093 lives lost. \3\ The trend is on the increase, up
nearly 25 percent to over 284 lives lost per year in the last five
years of study. While the number of fatal crashes in the nation during
the study period declined 2.2 percent, the number of fatal motor
vehicle crashes per year on Indian reservations increased 52.5 percent.
American Indians also have the highest rates of pedestrian injury and
death per capita of any racial or ethnic group in the United States.
---------------------------------------------------------------------------
\3\ Fatal Motor Vehicle Crashes on Indian Reservations, 1975-2002,
April 2004, DOT HS 809 727, U.S. Department of Transportation, National
Highway Traffic Safety Administration,
---------------------------------------------------------------------------
Tribal communities share many similar concerns and obstacles as
rural communities in addressing how to improve the safety needs. NCAI
has worked diligently with tribal governments to find solutions for
improving the safety and infrastructure of Indian Country. Presently,
tribes receive a two-percent set aside of the total allocation from the
National Highway Traffic Safety Administration; the funding is then
allocated to BIA where the BIA Highway Indian Safety Program
administers the programs. The purpose of this program is to assist
tribes with their proposed highway safety projects, which are intended
to reduce traffic crashes and impaired driving crashes; increase
occupant protection education; provide emergency medical service
training; and increase police traffic services. The two percent set
aside is equivalent to $14 million annually, and it is a competitive
grant process. NCAI has received concerns from tribal leaders about the
inadequate effectiveness of the BIA Highway Indian Safety Program. In
the past, there has been turnover of the directorship of the office and
lack of guidance and support to tribes. For example, tribes have been
denied the grant funding but they were not informed of the reasons for
the denial, and tribes have contacted the office, and no one seems to
be returning their phone calls.
NCAI recommends Congress assist in confronting the high injury and
fatalities on tribal roadways and to resolve the concerns about the BIA
Highway Indian Safety Program by establishing a 2 percent Tribal
funding set-aside within the High Risk Rural Roads Program, and create
a new Tribal Traffic Safety Program within the FHWA-Federal Lands
Highways office and within NHTSA, each funded at $50 million annually
to dramatically reduce the incidence of death and injury on America's
Indian reservation roads. The creation of these new programs would help
to reduce the safety and behavioral problems that contribute to the
high rates of death and injury on Indian reservation roads.
Safe Route to School
The Safe Route to School Program \4\ was created under SAFETEA-LU
within the FHWA and is administered by State Departments of
Transportation. Each State has its own administering guidelines for
applying for Safe Routes to School program. This program received a
total of $612 million for the fiscal years of 2005 to 2009, and each
State funding is formula based. The Safe Routes to School Program
essentially provides funds to States to improve the ability for primary
and middle school students to safely walk and bike to school.
Furthermore, the program assists schools within a two-mile square
radius, to plan, develop, and implement safety projects and activities
to reduce traffic and fuel consumption; and encourage active
lifestyles.
---------------------------------------------------------------------------
\4\ Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users, Pub. L. 109-59, Sec. 1404, 119 Stat. 1228, 86-
88 (2005)
---------------------------------------------------------------------------
There are over 741 public schools located in American Indian and
Alaskan Natives areas, with a total of 82,406 native students; and the
Bureau of Indian Education serves approximately 50,155 native students
at 181 elementary and secondary schools. \5\ Many of these schools are
located in remote and rural areas, where students have to be bused for
more than 50 miles.
---------------------------------------------------------------------------
\5\ IES National Center for Educational Statistical Common Core of
Data, Public and BIE elementary and secondary schools: number of
schools and enrollment in the American Indian and Alaska Native Areas,
2005-2006 and 2007-2008, Table 1, (2010), http://nces.ed.gov/ccd/
tables/ccd07_aia_schools.asp
---------------------------------------------------------------------------
NCAI is supportive of programs that promote safety and active
healthy lifestyles of school students. However, NCAI is concerned about
the inability to know the number of schools on tribal lands who have
successfully applied and been awarded funding under the Safe Route to
School program. Since each State Transportation Departments and their
coordinators administered the program, it is difficult to determine who
and how many public schools on Indian reservations have benefited from
this program. In addition, the Bureau of Indian Education (BIE) schools
are not eligible to receive this funding.
NCAI recommends this Committee consider amending the statutory
language of the Safe Route School Program to enable BIE schools to be
eligible to receive funding; to create a tribal set-aside for public,
bureau, charter, impact-aid and grant schools on tribal lands to be
able to participate in this program; and to increase two mile radius
requirement. Naturally, this produces additional questions on the issue
of who would administer this program for these schools, and the amount
of funding. NCAI looks forward to working with this Committee on this
matter.
Gas Excise Tax
To date, there are over 120,000 miles in the Indian Reservation
Roads (IRR) system but yet it is the most underdeveloped road network
in the nation, \6\ and it is the primary transportation system for all
residents of and visitors to American Indian and Alaska Native
communities. Over two-thirds of the roads on the system are unimproved
dirt or gravel roads, and less than 12 percent of IRR roads are rated
as good. \7\ The condition of IRR bridges is equally troubling. Over 25
percent of bridges on the system are structurally deficient. \8\
---------------------------------------------------------------------------
\6\ Bureau of Indian Affairs, Transportation Serving Native
American Lands: TEA-21 Reauthorization Resource Paper (2003)
(attached).
\7\ Id.
\8\ Id.
---------------------------------------------------------------------------
Tribal economies, education systems, health care and social service
programs are threatened by unsafe and often inaccessible roads, bridges
and ferries. A recent Federal traffic safety study showed that Indian
tribes suffer the highest per capita traffic fatality rate in the
Nation, more than four times the national average. \9\ Each year,
drivers on the IRR system travel over 2 billion vehicle miles on a
system that is a clear health and safety hazard for our communities and
an impediment to meaningful economic development. \10\
---------------------------------------------------------------------------
\9\ National Center for Statistics and Analysis, Fatal Motor
Vehicle Crashes on Indian Reservations: 1975-2002, (2004)
\10\ BIA Paper, supra note 1.
---------------------------------------------------------------------------
Funding for Tribal Transportation Systems
The current scheme for funding surface transportation in the United
States is based on a federal-state motor fuel taxation regime that
precludes tribes from participating in the system on an equitable
basis. While the system of using federal fuel tax revenue for road
construction and state fuel tax revenue for maintenance has worked to
dramatically improve roads in many parts of the nation, it has failed
miserably in Indian Country.
Like states, Indian tribes receive some funding for road
construction from the federal Highway Trust Fund, but the amount given
to tribes is much less than what states receive. Currently, Indian
Reservation Roads make up nearly three percent of federal roadways, but
they receive less than 0.5 percent of total federal highway funding.
\11\ At the current funding levels, the IRR program receives only about
half the amount per road mile that states receive.
---------------------------------------------------------------------------
\11\ U.S. Dept. of Transportation, Federal Highway Administration,
TEA-21, A Summary (1998).
---------------------------------------------------------------------------
The Federal Government also makes some funds available to tribes
for IRR maintenance under the BIA Maintenance Program. This Program is
also woefully inadequate. The BIA spends less than $1000 per mile for
road maintenance, compared to estimates of $4000-$5000 per mile used by
states to fund non-IRR maintenance. \12\ Moreover, the states, who
receive federal funding for their own roads that fall within
reservations, frequently shirk their obligation to improve or maintain
these roads and instead siphon off the funds for use elsewhere. \13\
---------------------------------------------------------------------------
\12\ Brief of Amicus Curiae the Inter-tribal Transportation
Association in Wagnon v. Prairie Band of Potawatomi, available at
http://www.narf.org/sct/richardsvpbp/ITA%20amicus%20final.pdf.
\13\ Id.
---------------------------------------------------------------------------
Faced with a severe inadequacy of funding from federal and state
sources, tribal governments have looked for other sources of revenue,
including levying their own motor fuel taxes. While tribes have the
same authority as other governments to collect taxes, the ability of
tribes to tax fuel on tribal lands has been severely diminished by the
Supreme Court. The Court has upheld the authority of the states to
reach onto tribal land to collect a state motor fuel tax. The dual
taxation that would result if both states and tribes impose a motor
fuel tax makes it impractical for tribes to generate revenue through
motor fuel taxes. Although some tribes and states have been able to
negotiate motor fuel tax revenue-sharing agreements, those cases are
the exception rather than the rule. In most areas, the state
governments' collection of motor fuel taxes in Indian country displaces
the ability of tribal governments to collect motor fuel taxes.
NCAI encourages this Committee to explore alternate sources of
revenue for reservations roads. Given the dire conditions of
reservation roads, it is unconscionable that the IRR program does not
enjoy parity with the amount given to other governments through the
Highway Trust Fund. NCAI feels strongly that this inequity of
distribution must be addressed in whatever new system is devised to
fund transportation systems across the nation. In addition, if motor
fuel taxes are to remain the primary source of funding for road
construction and maintenance, we urge the Committee to recommend that
Congress clarify authority of Indian tribes to collect this tax on
tribal lands. Finally, if the Committee recommends a dramatic change to
the way revenue is raised for transportation costs, NCAI recommends
that any such system be devised in a manner that treats Indian tribal
governments equitably and gives them the same authority as state and
local governments to raise revenue to fund the costs associated with
building and maintaining transportation infrastructure.
Conclusion
NCAI is committed to working with tribal governments to improve and
build upon the successes of the last authorization of SAFETEA-LU
because transportation infrastructure is vital to the enhancement of
Indian tribal governments. Strengthening tribal governments and their
communities by providing safe and reliable transportation
infrastructure is essential for communities to prosper.
Senator Tester. Thank you, Jefferson. We'll start out with
you, Larry. You talked about the Question 10 and that you've
had ten consultation sessions, and correct me if I'm wrong,
across the U.S. Can you give me an idea of where you've held
them and what kind of participation you've had. Because tribal
consultations are critically important as we move forward and
address that issue.
Mr. Echo Hawk. Senator Tester, we've had ten of those
consultations sessions. We tried to make sure they were located
in different regions to provide tribal officials access. And we
presently have going about, I think, more than half a dozen
different subjects on consultations. And I'm not able to attend
personally all. I did attend one in Alaska.
And I'd like LeRoy Gishi maybe to respond to more details
about how those consultation sessions were carried out.
Senator Tester. That would be great. LeRoy.
Mr. Gishi. Thank you, Senator Tester.
Yes, we had ten consultation sessions in the 12 regions
that are associated with the BIA Region offices. And we can
provide a list of those. Off of my head, I can think of only a
few. But we did have those.
Primarily, what we did is the same presentation. So it gave
the opportunity for tribes to be able to get the same content
of what is in the presentation and publish the agenda and the
presentation was published as part of the Federal Register, so
that everybody had an opportunity to ask questions and also
comment. And that process will continue as we go through the
implementation process.
Senator Tester. Couple questions. How much participation?
Mr. Gishi. We generally got on the average of about 50 to
60 at each location with a high of 138 in one of the locations.
Senator Tester. Do you have plans to do many more?
Mr. Gishi. We will continue as a part of the process of
this consultation to make sure that meetings like this morning
are available where we're able to come and provide questions.
And as the process continues, as more information is provided,
it will be provided in the consultations.
Senator Tester. Okay. And you can continue or you can kick
it back to Larry. Is there any sort of pattern starting to
develop as far as the Question 10 as far as solutions for it?
Mr. Gishi. In general, what we were doing was providing
information for the purposes, of course, for the tribes to be
able to have input into this. As we've gone through these ten
sessions, we received various comments that are generally
everywhere from in favor to opposition. That's part of the
process that we're hoping to be able to get. We realize as we
go through this, we will continue to get more, because for
tribes in many cases to provide a final assessment or comment
on things, at this point is premature because this
implementation process has been over a year, and basically over
the next two years.
Senator Tester. So maybe I should rephrase the question.
Has the input been positive towards it, negative towards it, or
what has the input been towards Question 10?
Mr. Gishi. In general what we've found is that the tribal
leaderships have identified and always and certainly reserve
the right to continue to have comments. But in many cases have
indicated that they understand that there is a process. That
this was referred to the leadership of both Indian Affairs and
the Federal Highway Administration for the purpose of providing
a plan. And for that reason, they were in favor of moving
forward with what was there.
Senator Tester. Okay. Larry, you talked about the Recovery
Act briefly in your statement today. You talked about the fact
that there were hundreds of millions of dollars put out, 99.9
percent. And you need to be commended for that as obligated.
Can you give me an example of some of the projects? Were
they primarily highway projects, bridge projects? What kind of
projects are we talking about? And you can pass that over to
Michael if you want.
Mr. Black. Thanks, Senator. We were able to, through the
ARRA program, work approximately 400 repair and restoration
projects, probably about 141 million, which was largely through
the Road Maintenance Program on bridges and roads. And in
addition, over 420 projects through the IRR Construction
Program and for a total of about $225 million.
It has enabled us to make a big difference out there on our
transportation systems. A good example of that would be the
Chippewa Cree Route 6 project, which was brought to us as a
proposed project to be funded through ARRA. It had a lot of
major safety concerns. We were able to reach a distribution
process of approximately $1.7 million toward that project.
Senator Tester. Overall, do you have any idea of how many
jobs were either saved or created by those dollars?
Mr. Black. I don't have that figure. We can provide that to
you.
Senator Tester. That'd be great. Thank you.
Last question as it applies to your group, Larry. We will
be working on a highway bill reauthorization. It's been talked
about by the other panels up here. How do you plan to include
tribes and getting their perspective as far as that Highway
Bill when it comes up?
Mr. Gishi. Thank you, Senator Tester. The process that we
went through--The Indian Reservation Road Program and Highway
Program, and we will continue to work with not only the Federal
Lands Highway Program with Mr. Baxter and Mr. Sparrow, but also
through the administration we have with other agencies'
programs within Interior, including the National Parks Program
of the National Park Service. And those will come through the
Interior Department. And certainly in that process we have
access to the TRIP Act, and we know what tribes are looking at
relative to that. And those are things that are certainly a big
part of what the administration will be looking at.
Senator Tester. Well, I have a ton of different tribes,
we're going to hear from some folks here in this next panel.
And I guess the question is, do you have an outreach method
that you utilize to reach out to tribes in both rural and urban
America to make sure that the Highway Bill meets the needs once
we get to the floor of the Senate or the Committee?
Mr. Echo Hawk. Senator Tester, from my perspective the
coordinating committee that we've got that represents all
regions is a primary conduit that we have for receiving
information. And I would hope that they would be very active in
working with us to make sure that we're receiving guidance. In
addition to that, I'd just like to assure the Senator that I'm
travelling across Indian country, going into communities, and
it seems like tribes regularly talk to me about the
transportation needs. So I feel like I have a pretty good
network of communications with tribal leaders.
Senator Tester. Very good. Thank you, Larry. I appreciate
that. And appreciate both you fellows for being here. John, do
you want to add to that? John Baxter.
Mr. Baxter. I want to add that over the past several months
Secretary LaHood has had a series of town hall meetings on
reauthorization. And as part of that process has invited the
tribal community into that discussion and for testimony to be
heard throughout that process. So we will continue to have that
effective outreach with the tribal nations.
Senator Tester. Okay. That's good and as long you've got
the microphone, I'll just keep going.
Mr. Baxter. Sure.
Senator Tester. We've got the folks and Larry Echo Hawk
that are doing some outreach obviously. You have methods and
you're doing some outreach with Ray LaHood. Do you have the
ability to gather the information that these guys are gathering
when you're working on a proposal?
Mr. Baxter. We do. And oftentimes, we're meeting with them
and outreaching with them. We certainly have the Indian
Reservation Roads coordinating committee as a critical
communications piece for all of us to utilize.
Senator Tester. Good.
Mr. Baxter. We have the consultation process that the
Department of Transportation recently adopted, which
reinforces, I think, the outreach effort that we already had in
the past.
But in every effort we have opportunities with senior
leadership to visit in Indian country and to participate in
national conferences. And oftentimes at these conferences we
will meet with tribal representatives and leadership to hear
their issues face-to-face, one-on-one, and to get information
on that process as well.
Senator Tester. Because I think it's critically important,
as you can tell by that question, that you have tribal
consultations from the folks that are living it every day. So
that's important. John, as long as you have the mic, one of the
first statements you talked about in your testimony was that
fatality is three times the national average on Indian roads.
Can you pick out one or two things as to why this is the case?
Mr. Baxter. There are a number of reasons the average is
higher than you would see elsewhere. Native Americans are over-
represented in certain categories of fatalities. There's a
mention of pedestrians as one of those categories. DUI
fatalities is another category. Speed fatalities, 35 years and
younger. So there are certain categories where we know that the
Native American population is over-represented. And that's why
our behavioral programs as well as our technical programs are
targeted toward those areas where we see the greatest need.
Senator Tester. Okay. We will get to Jefferson Keel. He has
some statistics to define that. I'll get to Jefferson in a
second. Have you been in on the Question 10 consultations over
the summer?
Mr. Baxter. Extensively, yes.
Senator Tester. What have you learned?
Mr. Baxter. Well, I think there's a couple things we have
learned about Question 10. One is it's a complex issue. This
has been in discussion since I've been in my position almost
four years ago, and it wasn't resolved at the point through the
Indian Reservation Roads Committee, and almost four years later
we're still working that issue. So we know there's a complexity
to it.
We also know there's a divergence of opinion across Indian
country as to what the next step should be. And that's also
been a challenge to work through the issue and facilitate and
negotiate that issue.
We know that we need to resolve the issue. We need to move
forward beyond Q-10. We are in the midst of looking at
reauthorization needs for the next legislative cycle. And the
more we're discussing and debated the Q-10 issue, that takes
energy and time away from the more important broader concepts
that we need to look forward towards the reauthorization needs
of Indian country for the next several years.
Senator Tester. Okay. Can you give me your perspective on
the Recovery Act and what it's done for Indian roads?
Mr. Baxter. I think the Recovery Act is a major success
story in Indian country. As was already alluded to, we
obligated 99.9 percent of over $310 million of funds that were
given to us.
What we haven't stated is that's on top of a program for
regular Indian reservation funds program of $450 million. Three
years ago we had unobligated funds of over $200 million. Now
we've got that down to a very reasonable level from last year
to this year. We've kept that balance down, so the net result
is we delivered a $450 million-plus program, plus $310 million
on top of that over the last year and a half. That is a
tremendous accomplishment for this program, for the tribal
nations that participated in the program and for the Bureau of
Indian Affairs and Federal Highway Administration in delivery
of that program.
So I see it as a major success story. I think what it shows
is that needs are great and the ability to deliver on the
program is great as well. And it's growing. It's grown since
the beginning of SAFETEA-LU, $275 million. This year we've
delivered over $700 million. So that's a significant statement.
Senator Tester. Yes. Are you familiar with the position,
and I think I've got the name right, Deputy Assistant Secretary
of Tribal Transportation?
Mr. Baxter. Yes.
Senator Tester. Can you give me any idea, is that position
filled at this point in time?
Mr. Baxter. It's not yet. I just checked on it this week,
and understand that that position is in process with the White
House and we expect the selection in the near future.
Senator Tester. How near is ``near future?''
Mr. Baxter. Don't know.
Senator Tester. Well, I would just say that I encourage you
to fill that position. I think it's really important as far as
conduit goes.
Mr. Baxter. Absolutely.
Senator Tester. Okay. Jefferson, let's talk about Question
10 for a second, because you're in an interesting position that
you do represent urban and rural tribes. Can you just give me
your perspective on that fix and if it's reasonable?
Mr. Keel. Senator, in terms of the Question 10, NCAI
doesn't officially take a position. We represent over 250
tribes, and in that process there's going to be winners and
losers if there's a change in the formula.
The official position would be that NCAI believes that any
fix should be coordinated with tribal leaders. It should be
fair and equitable. And as you've heard, tribal leaders believe
there is a fix on the way, and they understand that they're
working through the program. But at the same time, there's a
difference and there's no common ground in many areas.
There are tribal leaders who are very staunchly opposing
any fix. There are those who believe it should be changed
immediately. So NCAI's position is that we will work to
coordinate and facilitate any of those meetings and work with
all of those parties concerned to make sure we get to the point
where it is equitable and it's fair in how it's distributed.
Senator Tester. Okay. We've heard from folks from
transportation. We've heard from folks from Interior about
outreach. Honest assessment is--You know, this is an age of
cooperation we live in. And I think it's critically important
we have collaboration. How has the tribal consultation been
from your perspective as it applies to highways?
Mr. Keel. I believe that the consultations, as you've
heard, have been positive. I'm not so sure that we've had
enough. I know that those consultations need to continue. There
are often concerns about the level of consultations in terms of
how the information is distributed, how it's received and the
inclusion of the tribal leaders in trying to develop a fix.
In terms of collaboration, I think that it's very difficult
to get consensus in every or any region regardless of where
those consultations occur. I believe honestly that tribal
leaders will agree that there needs to be a fix. But I believe
there is still going to be a process where it's going to be
very difficult to change the formula to something that not only
is easily understood, because I believe that many tribal
leaders simply don't understand how that formula is derived and
developed.
Senator Tester. And for good reason.
Mr. Keel. Probably so. Well, historically tribes have never
been involved in the process. And so I think tribal leaders are
now are becoming more and more sophisticated and more and more
involved, and they're able to not only acquire or hire or get
experts to come and assist them, but they're actually more and
more able to participate in those developments. And I think
that's a positive.
Senator Tester. I agree. And I'll just tell you from my
perspective that reaching out, getting input is critically
important. I think you guys are doing it. I think you need to
do more of it and do it to the best of your ability.
It was pointed out to me earlier today at a meeting I was
at, and that is, the legislative process isn't such where
everybody wins. I mean, you go in and negotiate and collaborate
and take input and you make the best call you can. And that's
the best you can do.
Jefferson, from your position with NCAI, do you guys have
priorities for the next Highway Bill, and if you do, what are
they?
Mr. Keel. Well, again we would ask that there be a 2
percent set aside for the safety program. I think I outlined in
my oral testimony what some of those priorities were. We would
ask that the tribes receive some of the equitable funding from
the federal and state gas taxes, how that highway trust fund is
developed and how it's distributed.
Senator Tester. Okay. Last thing, and then we'll move on.
In your testimony you put forth some information that said
fatalities throughout the country were decreasing at 2.2
percent and increasing in Indian country by 52 percent. That's
a stunning statistic.
First question is, what period was that gauged over, number
one? And number two, why?
Mr. Keel. The period was actually from 2000--Those are 2007
numbers.
I believe that there's $14 million set aside for the Tribal
Safety Program. That's a competitive process. Many times tribes
have to apply for grants. Many times tribes aren't able to
apply for those grants in a timely fashion, therefore they
don't receive the funding. Oftentimes when tribes don't receive
the grant and they call to find out why, they don't receive an
adequate answer. That's not the reason why fatalities
increased. That's the reason we don't get technical assistance
to help us plan better and utilize the systems that we have
within.
Senator Tester. Okay. Well, thank you very much. I want to
thank all the folks that were on this panel. I very much
appreciate it. Thank you very much for being here.
Now, we'll have the next panel come up. We're going to do
this transition real quick.
Thank you all very much. The next panel consists of the
Honorable E.T. Bud Moran who is Chairman of the Confederated
Salish and Kootenai tribes right here in this neck of the
woods, Pablo, Montana.
Beside him we have Mr. James Steele, Jr., Chairman of the
Montana-Wyoming Tribal Leaders Council. And that organization
is headquartered in the town of Billings.
Beside him we're going to have Timothy Rosette, who's Chief
of the Environmental Health Division of the Chippewa-Cree tribe
of the Rocky Boy reservation. And there's Mark Selder.
And then once again, last but certainly not least, we've
got John Smith, the Director of the Division of Transportation,
Eastern Shoshone and Northern Arapaho Tribes in Fort Washakie,
Wyoming.
The same rules apply here. Before I start with Chairman
Moran, I want to remind you all to restrict your oral comments
to five minutes. We will make your complete written statement a
part of the official record. But for your testimony, I'd like
your statements to be about five minutes. And if you could do
that, we'd be forever grateful.
So, Bud, you're first.
STATEMENT OF HON. E.T. ``BUD'' MORAN, CHAIRMAN, CONFEDERATED
SALISH AND KOOTENAI TRIBES
Mr. Moran. Senator Tester, George Waters wanted to be here
to accompany me.
Senator Tester. Absolutely. George Waters is welcome
anywhere.
Mr. Moran. Senator Tester and distinguished guests, I have
submitted a detailed statement for the record and will now
summarize my testimony.
It is an honor to be hosting this hearing on our
reservation. I'm pleased to present this statement representing
the position of my tribes on transportation issues of the
Salish and Kootenai people.
I ask that you please relay my regards to Committee
Chairman Dorgan. He's been a great advocate for the Indian
people with his pending retirement from the Senate. Please let
him know we will miss him and wish him the best of luck.
I also have to send my regards to Senator Barrasso. We have
also appreciated his support.
For too long much of the basic infrastructure of almost
every Indian reservation in the United States was simply
overlooked. The things most Americans take for granted are
lacking on our homelands. Many do not have decent roads,
drinking water, sanitation systems or communications. Many do
not have broadband or decent cell phone coverage. While all of
us, and I'm sure every member of the U.S. Congress, would like
to see Indian people become more self sufficient and to raise
levels of employment on our reservations, these things are not
possible without basic infrastructure.
Nationally there's a lacking backlog of about $13 billion
for BIA road systems and tribal roads to bring existing roads
up to adequate design standards. Indian tribes still have the
highest vehicle and pedestrian fatality rates found anywhere in
the country, and in a number of areas they are three to four
times the national average.
Beyond the issue of road construction is a profound problem
of road maintenance. Not only has the Bureau of Indian Affairs
road maintenance been underfunded but it has been stagnant at a
rate of $26 million annually for the entire United States for
at least two decades. This is really a serious problem on the
Flathead Reservation, as I am sure it is elsewhere. We have
been getting only $190,000 a year for road maintenance for the
past six years.
Over the course of the last two years, Senator Dorgan
circulated a discussion draft known as the TRIP Act. The
discussion draft contained many provisions that would be
tremendously helpful to the Indian tribes. And I've highlighted
some of these sections in my written statement.
I understand the positive nature of many provisions
contained in the TRIP Act; I would not support it being
introduced next year without a number of changes.
The Indian reservation road formula is broken. It will gain
nothing from the TRIP Act if it is not fixed. Let me give a
rather startling example of why I feel this strongly. Prior to
the enactment of SAFETEA-LU, the national funding level for the
Indian reservation roads was $275 million a year. Of that
amount the tribes in the Rocky Mountain Region, all tribes in
Montana and Wyoming except Salish-Kootenai who are in the
Northwest Region, got $20 million.
With the increase authorization in SAFETEA-LU, the national
funding level for Indian reservation roads increased to 450
million. After that significant national increase, the Rocky
Mountain Tribes' total allocation was 19 million. Yes, with 175
million national increase, the Rocky Mountain Region lost
money. This is the region with most of the largest reservations
and the most miles of roads of any in the country.
On the Flathead Indian Reservation in 2006, we received 1.3
million from the formula. In 2010 we will likely be receiving
only 750,000 for a 1.3 million reservation.
I don't understand how this is possible or how the BIA has
not put an immediate halt to this drain of money from Tribal
and BIA roads. This is because the Indian Reservation Roads
Inventory is being unethically and improperly manipulated by
tribes and states that have learned how to game the system by
adding thousands of miles of roads to the inventory. This needs
to stop and it should stop today.
It does not require an act of Congress or even a new
regulation. It simply requires the BIA to stop pretending this
is not a crisis and to stop allowing the Indian Reservation
Roads Inventory System to be manipulated.
So while there are Indian people on the reservations who
can't get to their jobs or their schools or to the hospital due
to impassable roads, we have a situation where BIA roads funds
are being used to supplant a state's responsibility for its own
interstate highway system. A system and a road for which the
state undoubtedly receives Federal Highway Trust Funds.
Mr. Chairman, my submitted testimony also discusses an
Interior Inspector General's report that found major
inaccuracies in BIA road inventory and its claimed increases in
roads in the inventory. My testimony discusses roads that are
proposed to be constructed in areas that will never allow such
construction. These discrepancies cannot be ignored and should
not continue.
In conclusion, I want to again thank the Committee and
Senator Tester for convening this hearing. Transportation
directly affects health, safety, and economic matters including
jobs and the ability to attract businesses. Safe roads allow us
to remain connected as a tribal people. I want to thank you.
And we will continue our support of positive changes to the
Indian Reservation Road System. And we will keep current.
[The prepared statement of Mr. Moran follows:]
Prepared Statement of Hon. E.T.``Bud'' Moran, Chairman, Confederated
Salish and Kootenai Tribes
Senator Tester and distinguished guests; as I said in my welcoming
statement, it is an honor to be hosting this hearing on our Reservation
and I am pleased to present this statement representing the position of
my Tribes on transportation concerns and priorities of the Salish and
Kootenai people. I ask that you please relay my regards to Committee
Chairman Dorgan. He has been a great advocate for the Indian people and
with his pending retirement from the Senate, please let him know that
we will miss him and we wish him the best of luck in whatever venture
he decides to pursue. I also ask that you send my regards to Senator
Barrasso of Wyoming, the Ranking Member on this Committee. We have also
appreciated his advocacy and understanding of our issues.
Let me start by stating that for far too long much of the basic
infrastructure of almost every Indian Reservation in the United States
was simply overlooked. The things that most Americans take for granted
often are lacking on our homelands. Many do not have decent roads,
drinking water and sanitation systems, or communications. Many do not
have broadband or decent cell phone coverage. While all of us--and I am
sure every member of the U.S. Congress--would like to see the Indian
people become more self sufficient and to raise levels of employment on
our Reservations those things often are just not possible without basic
infrastructure. I am always glad when Congress enacts legislation that
might, for instance, include tax breaks or accelerated depreciation for
businesses that locate on Indian reservations, however the truth is
that you can enact tax breaks all day long but until we can ensure a
business that they will have access to good infrastructure, none of
them are likely to chose to build a business on reservation lands. You
have probably heard the old story about a tourist out west who pulls
into gas station and asks where the local Indian reservation starts.
The answer is ``the reservation starts where the highway ends.'' For
many decades that was not just a joke but a pretty accurate portrayal
of the roads in Indian County. Now things have gotten better,
particularly on the Flathead Reservation but there are still many roads
here--and it is worse on most other Indian reservations--where the
roads are severely substandard. The FY 2009 Indian Reservation Roads
Program Relative Needs Distribution Factors Report found a backlog of
$13 billion for BIA system and Tribal roads to bring existing roads up
to adequate design standards. Indian tribes still have the highest
vehicle and pedestrian fatality rates found anywhere in the country and
in a number of areas are three to four times the national average. The
leading cause of death in many Indian communities is fatal car crashes
and much of that is related to road conditions including both design
and lack of maintenance. The problem is worsened when a responding
ambulance (when there even is one), has to deal with the same roads and
is delayed in its response. There are many studies showing the extent
to which reservation roads are underfunded and poorly maintained when
compared to comparable roads in off-reservation communities and urban
areas.
The $310 million included in the American Recovery and Reinvestment
Act for Indian reservation roads was most appreciated and we thank
President Obama and the Congress for enacting that bill. We were able
to address some of our backlog of needed road repair and in so doing
created much needed employment. We also were able to use ARRA funds for
a bus transit project we've worked on together with the State of
Montana.
Beyond the issue of road construction is a profound problem
throughout all of Indian country relative to road maintenance. Not only
has the Bureau of Indian Affairs (BIA) road maintenance program been
underfunded but it has been stagnant at a rate of $26 million annually
for the entire United States for at least two decades. This is really a
serious problem on the Flathead Reservation as I am sure it is
elsewhere. We have been getting only $190,000 a year for maintenance
for the past six years. When some of earlier highway bills such as TEA-
21 were enacted that included construction money from the Department of
Transportation for Indian Country there was an understanding that those
funds would supplement the budget of the Transportation Office of the
Bureau of Indian Affairs, that the BIA would not be allowed to use new
DOT funding to supplant existing BIA roads funds and that the BIA would
continue to be primarily responsible for maintenance. The BIA did not
live up to its end of that bargain and now, due to the totally
unrealistic funding for maintenance from the Bureau, tribes had to
secure a provision in the SAFETEA-LU bill of 2005 allowing them to
reprogram up to 25 percent of their road construction money for
maintenance. That legislation included language directing the BIA to
continue to be primarily responsible for maintenance but as you can see
from the stagnant $26 million figure, the BIA, no doubt with pressure
from OMB, has shirked that responsibility. So as a result, not only are
roads in Indian County dangerous due to lack of maintenance but they
fall apart more quickly and then have to be rebuilt at far greater
costs than if they had been maintained and resurfaced.
This year Congress was not able to enact a Highway Bill and the
present program is funded only through the end of calendar year. We
certainly hope it will be extended and that during the next Congress
you will enact a Highway Reauthorization Bill. It is critical that such
a bill includes a major Indian title, as has been the case for at least
the last three Highway Authorization bills, and that you include Indian
tribes throughout as much of the bill as is possible ensuring that we
can access all appropriate programs. Over the course of the last two
years Senator Dorgan circulated a discussion draft which was a
comprehensive amendment to SAFETEA-LU known as the Tribal
Reauthorization of Indian Programs or simply the TRIP Act. The
discussion draft contained many provisions that would be tremendously
helpful to Indian tribes including increased appropriations for the
Indian Reservation Road (IRR) program to $800 million with stepped
increases that would take the program to $1 billion annually by FY
2015. It included significant increases for the Tribal Transit Program
and the Tribal Bridge Program and established a Reservation Safety
Program. It ensured increases in reservation road maintenance funding;
allowed tribal access to other Federal programs and allows utilization
of the Indian Self Determination Act as a vehicle for directly
accessing DOT funds. Beyond these positive provisions that were in the
TRIP Act there are various additional provisions we would like to see
in the next highway bill. We support the increases proposed for transit
and as stated above we used some ARRA funding to upgrade and purchase
transit equipment but that money came through the State of Montana and
they require matching funds on our part to operate the buses, so we
hope there can be some money dedicated to tribal transit services in
addition to equipment.
Somehow there also needs to be a requirement for counties and
states to coordinate with tribes relative to roads that cross
reservations where there are varying governmental entities, state,
tribes and counties that might have jurisdiction over a the same but at
various points along that road. We can't have one entity maintaining a
road for a two mile stretch and then have a different entity ignore
that same road in the next two mile segment. All transportation
agencies need funding but there needs to be some direction for
coordinating. Perhaps with the acceptance of Federal funds would
require a commitment for coordination and an annual report describing
that coordination.
Senator Tester, while I hope that you introduce the TRIP Act early
next year, and while I understand the positive nature of many of the
provisions contained in the conceptual Dorgan draft, I would not
support your actions in introducing it if you did not first make a
number of key changes. The IRR formula that the BIA is using, and that
the Federal Land Highway Office is supporting, is now broken and we
will gain nothing from the TRIP Act if you don't fix it. Let me give a
rather startling example of why I feel this strongly.
Prior to the enactment of SAFETEA-LU, the national funding
level for the IRR was $275 million a year. Of that amount the
Tribes in the Rocky Mountain Region (all tribes in Montana and
Wyoming, except CSKT who are in the NW Region), got $20
million. With the increased authorization in SAFETEA-LU the
national funding level for the IRR increased to $450 million.
After that significant national increase the Rocky Mountain
Tribes total allocation was $19 million. Yes, with a $175
million national increase, the Rocky Mountain Region tribes
lost money! This is the region with some of the largest
reservations and the most miles of roads of any in the country.
On the Flathead Indian Reservation in 2006 we received $1.3
million from the formula. In 2010 we will likely be receiving
only about $750,000 for a 1.3 million acre reservation. I don't
understand how this is possible or how the BIA has not put an
immediate halt to this drain of money from Tribal and BIA
lands. This is because the IRR Inventory is being unethically
and improperly manipulated by tribes and states that have
learned how to game the system by adding thousands of miles to
IRR Road Inventory for roads that should not qualify to be on
such a list. The TRIP Act did nothing to change that. Senator,
if this is not corrected and if the next Highway Authorization
bill did manage to increase the funding level for the IRR to
$800 million, the tribes in Montana and Wyoming might end up
going down to a $15 million share! This needs to stop and it
should stop today. It does not require an act of congress or
even new regulations. It simply requires the BIA to stop
pretending this is not a crisis and to stop allowing the IRR
Inventory system to be manipulated. Despite contentions to the
contrary the changes they are suggesting in Question 10 of the
IRR formula will not fix this problem. The Question 10 changes
contain some improvements but nowhere near enough.
In 2006, 76 percent of the roads generating share in the BIA's
nationwide Road Inventory were Tribal or BIA roads. Certainly these are
the roads the program is intended for. That is why it is called the
``Indian Reservation Road'' program (emphasis added). This program is
intended to construct, repair and maintain roads on Indian reservations
and traveled by the Indian people who live on those reservations. These
roads are on lands that the United States holds in trust and the
program is a part of Federal governments fiduciary trust responsibility
to federally recognized Indian tribes. The injury and death statistics
used to justify the program certainly come from those on-reservation
roads. Yet, in 2010 only 24 percent of the roads generating share in
the BIA's nationwide Road Inventory are Tribal or BIA roads. Instead of
being called the Indian Reservation Road program it should be changed
to the ``State and County Road Program Being Supplemented by the BIA.''
This is happening because certain tribes are adding thousands of miles
of off-reservation state and county roads to their IRR inventories. In
2004 there were 62,000 miles in the national IRR Inventory. In 2010
there are 126,000 miles on this same inventory. So while we have
remained stagnant or lost funds during times of large appropriations
increases, tribes that are gaming the system are doing just the
opposite. There is a tribe in Minnesota whose IRR funds went from
$700,000 to $7.3 million over the course of two years. A tribe in
Oklahoma gave $20 million of IRR funds to the state of Oklahoma for
Interstate Highway 44, a road that the State of Oklahoma is clearly
responsible for. This will apparently help customers get to one of this
tribe's numerous casinos. So while there are Indian people on
reservations who can't get to their jobs, or their schools or to the
hospital due to impassable roads, we have a situation where BIA roads
fund are being used to supplant a state's responsibility for its own
interstate highway system, a system and a road for which that State
undoubtedly receives Federal Highway Trust Funds.
The formula used to allocate IRR funds is known as the Tribal
Transportation Allocation Methodology (TTAM). The BIA continues to tell
the Congress and the public that TTAM was a bi-product of a Negotiated
Rulemaking Committee called for in the TEA-21 highway bill. What is not
discussed is that after that rulemaking committee submitted its work to
the BIA, the BIA made some rather substantial changes on its own. Those
changes resulted in the manipulation of inventory data that has skewed
the Cost to Construct (CTC) and Vehicle Miles Traveled (VMT)
calculations for those tribes located near urban area and high volume
highways.
IRR funds are allocated under formula known as the Relative Need
Distribution Factor and it has three basic components: (1) Costs to
Construct (CTC) (2) Vehicle Miles Traveled (VMT) and (3) Population
(POP). In addition to on-reservation roads the formula allows tribes to
include roads that ``access'' the reservation. Unfortunately, access is
not defined. Without a definition the possibilities are endless.
Senator, when you are in DC and fly out of Dulles Airport and are
heading west on I-66 if you kept going far enough and connected to
other highways you would eventually ``access'' an Indian reservation
wouldn't you? Highway 93 crosses our reservation but just south of our
reservation and slightly north of Missoula it intersects I-90. Should
we claim that as accessing our reservation? It gets better. Think if
instead of Missoula there was a much larger urban city there, and think
of the Vehicle Miles Traveled--the VMT part of the formula--on I-90.
How many vehicles that traveled such a road and that didn't have a
single Indian person inside can be claimed? The BIA is allowing tens of
thousands of miles of such roads into the inventory including
Interstates, National Highway System Roads, State, County and Township
Roads. Most of these routes do not legitimately provide direct access
to an Indian Reservation. A tribe in Wisconsin whose total land base is
4,600 acres now generates 800,878 Vehicles Miles Traveled on 2,436
miles of claimed roads in its inventory. This VMT is greater than the
entire VMT for each of five BIA regions of the country.
Lest you think that these are simply the observations of a tribe
who has seen nothing from the Congressional increases let me quote from
a memo by the Interior Inspector General who examined this issue in a
report entitled ``Department of the Interior Roads Programs--The
Dangers of Decentralization,'' dated February 1, 2010. The IG wrote:
``We found significant inaccuracies in roads inventories that affect
the ability of bureaus to identify needs correctly and inefficiencies
in the processes that bureaus use to prioritize their needs''. The
report indicated that the BIA Roads Program ``lacked sufficient
safeguards to adequately detect misuse and mismanagement of funds.''
The report further indicated that the BIA did not have adequate
inventories of its roads and it referenced the large increases in the
BIA's national inventory of roads as being ``unexplained.''
Another major area of concern that tribes have can be found in the
many miles of ``proposed'' roads that have been added to a number of
tribes' inventories. These are roads that a tribe would like to build
someday so they ask for and get funds from the IRR formula for them.
The problem is that many of them will never be built. We have seen
situations where Alaskan Villages are claiming proposed roads in
wilderness areas or in areas where the terrain is such that 100 German
engineers could not build a road. Yet as long as that proposed road
remains on a tribe's list it will continue to get funded, year after
year after year. There does not appear to be anything in the BIA's
proposed Question 10 revisions that will change these problems.
When a road is added to a tribe's inventory it's pavement condition
is supposed to be rated as to its actual degree of needed repair and
for a paved road, if it gets a rating of 60 or less it can generate
funding for the paved surface and the aggregate base under the surface
at 100 percent. There are untold miles that have been added to the
inventory that are all rated at exactly 60 which is nearly impossible.
This means that someone sitting at a desk simply listed the road
without a scintilla of a field examination. This practice has resulted
in thousands of miles of non-BIA and non-Tribal roads generating
funding at 100 percent with bogus data and at the expense of those
tribes who choose not to cheat the system.
What is equally amazing is that after claiming these roads in their
inventories, these same tribes don't actually do any work on them. With
the exception of the Oklahoma tribe that gave that state $20 million
for I-44, we have never heard of a tribe actually doing work on the
thousands of off-reservation miles claimed. They simply use the
existence of the road to add it to their inventory and then spend it on
something else, presumably transportation related but not on the
claimed road. I am not an attorney but I wonder if this practice is not
coming very close to being fraudulent. Additionally the statutes
governing this program indicate that the funds are for road
``projects'' and 23 USC 101(a) defines that term as ``an undertaking to
construct a particular portion of a highway.'' It defines
``construction'' as ``the supervising, inspecting, actual building and
incurrence of all costs incidental to the construction or
reconstruction of a highway.'' Senator, if there is no ``project'' and
there is no ``construction'' how are these roads qualifying?
Continuing with the remarkable situation is the fact that non-
tribal and non-BIA roads that are added to tribal inventories are
supposed to be added at what is known as a ``Non-Federal Share'' of the
costs of the project. 23 USC 201(1) says that funds appropriated to
carry out the Federal lands highway program may be used to pay the Non-
Federal Share (NFS) of the costs of a project that provides access to
or is within an Indian reservation. The non-Federal share is normally
between 5 percent to 20 percent yet many of these roads are being
funded at 100 percent of their costs. The issue of what percentage of
costs a tribe should get is discussed in Question 10 of 25 CFR Part
170, Subpart C a key part of the IRR formula. On February 12, 2009,
Senator Jeff Bingaman forwarded a letter from the Navajo Nation to the
Interior Department and to Federal Highway Administration. The Chairman
of the Navajo Nation's Transportation Committee was expressing concerns
similar to what you have heard from me today. Jeff Paniati, the Acting
Administrator of the FHWA responded to the Senator on March 25, 2009
and in addressing concerns about funding for such non-BIA and non-
tribal roads said,
``In the calculation that determines a Tribe's share of the IRR
Program funding, data from State routes generates funding only
at the local match rate (typically 10 to 20 percent of their
generated total.) `` [parenthetical included in original]
If Mr. Paniati is correct, there is a major violation of the
regulations ongoing as there are quite literally thousands of miles of
such exact roads being funded at 100 percent, not 10 to 20 percent.
The Paniati letter also said that,
``Interstates, although eligible for expenditure of IRR Program
funding, are not included in the data entered into the
distribution formula at all.''
Again, if Mr. Paniati is correct, there are further ongoing
violations of the regulations and laws as there many miles of
Interstate highways that tribes are absolutely including in their
inventories that profoundly affect the distribution formula. How else
could the tribe in Oklahoma have gotten $20 million that it gave to the
state?
Question 10 ostensibly tells us that two key factors in the IRR
formula (Cost to Construct, CTC) and the aforementioned VMT, should be
computed at the Non-Federal Share for matching funds if the road in
question is otherwise eligible for other Federal Highway funds unless
(see subpart 3) the public authority (i.e. State or County) responsible
for maintenance of the road in question provides a) a certification of
maintenance responsibility and b) a statement that it is unable to
provide funding for the facility. When States accept Federal Highway
funds from the United States they are required under 23 USC 116 to
certify that they will maintain the project that the federal funds were
used to construct. If they do not do so the Federal Government may
cease all funding for road work in the state. I do not understand how a
state that has certified it is responsible for maintaining its roads
can then turn around with a wink and a nod and tell a tribe that the
state does not have the money to maintain the road so the tribe can
claim it within its inventory. When tribes in Montana asked our State
Highway Department if they would make such a statement they indicated
that they would not and that they felt they would be perjuring
themselves if they did. Beyond differing interpretations of the law by
states, one of the many problems with how the BIA is implementing the
formula is that it is not even being applied uniformly from one BIA
Regional Office to another. Some regions will allow the inclusion of
such roads and others will not.
In conclusion, I want to again thank the Committee and Senator
Tester for convening this hearing. Transportation is very important for
the Indian people. It directly affects health, safety and economic
matters including jobs and the ability to attract businesses. We hope
that the TRIP Act will be reintroduced next year. If the BIA does not
thoroughly fix the misapplication of formula by a large number of
tribes and the widely varying application of the formula that change
from one BIA Regional office to the next, the Congress will need to do
so via amendments to the underlying statutes.
Senator Tester. Well, thank you Chairman Moran. I want to
thank you for hosting us here today and thank you for your
testimony. And we will follow up with some questions after we
get done with the rest of the presenters. Thank you very much.
James Steele.
STATEMENT OF JAMES STEELE, JR., CHAIRMAN, MONTANA-WYOMING
TRIBAL LEADERS COUNCIL
Mr. Steele. Thank you, Senator Tester. And I want to thank
you for responding to our resolution dated August of 2010
requesting this hearing on Indian reservation roads. And in my
opinion, the term Indian Reservation Roads in this current
system is not proper for this process.
These roads in my opinion as Chairman of the Montana-
Wyoming Tribal Leaders Council, in large part in a lot of the
regions of the nation are not Indian reservation roads. They
are in fact other things. They are interstate highways, they
are roads that do not exist, they are proposed roads, and in
our opinion from the Montana-Wyoming Tribal Leaders Council,
we're unified. Our region is not split on this issue. We are
unified 100 percent in all of our member tribes.
And it is our opinion that this system is broke as chairman
Moran has stated, it's broken. We appreciate the hearings and
the consultations sessions. We appreciate the session that we
had last fall--I believe it was in California--on this issue.
There was not consensus.
But it is our opinion that the BIA has been interpreting
data region-by-region in a different manner. And while we vary
in manners of interpretation, some regions are allowing roads
to be added, where other regions would reject the same road in
a similar circumstance. Some regions are including interstate
highways in clear violation of the BIA-DOT guidelines for the
IRR program.
The Montana-Wyoming Tribal Leaders Council has previously
made its concerns known to the BIA and the Federal Highway
Administration regarding the IRR data. So we still express
those concerns. And you will hear testimony from Mr. Rossette
and John Smith on this issue in more detail, but I want to give
a general background that our tribal leaders and our tribal
councils and governments that are part of the Montana-Wyoming
Tribal Leaders Council are unified. And I take a little bit of
exception to President Keel's comment that some regions are not
unified. Maybe some are not. Ours is.
And so with that, Senator Tester, I appreciate you holding
this hearing. I appreciate your leadership on the Indian
Affairs Committee. And I appreciate you including the Majority/
Minority staff here and Senator Barrasso's representative also.
Senator Tester. Absolutely, James. Thank you for being
here, too. I very much appreciate your work.
Tim Rosette.
STATEMENT OF TIMOTHY W. ROSETTE, SR., CHIEF,
ENVIRONMENTAL HEALTH DIVISION, CHIPPEWA CREE TRIBE, ROCKY BOY
RESERVATION
Mr. Rosette. Thank you, Senator Tester. I'm having throat
problems here, a little congestion. I hope you guys can all
hear me. It's never been a problem, me being heard.
Senator Tester. First time I've heard you. Could you put
the mic a little closer and it will help your throat and help
people hear you, too.
Mr. Rosette. Okay. While the SAFETEA-LU provided us a
significant increase in IRR funding, we are dismayed that the
land-based tribes saw little increases and a lot of times
literally lost funding because of the misinterpretation,
misapplication, whatever we want to call it, on controlled
implementation on the formula that the BIA Federal Highways
administers.
Let me explain why funding decreases to our largest land-
based tribes in the U.S., why that has happened. Because
certain BIA regions allow their road engineers to include all
types of roads regardless of ownership, and Federal Highways is
doing nothing about it since they directly benefit from the
off-reservation roadwork being done. By allowing all roads into
the BIA Roads Inventory System, the funding becomes diluted to
the larger land-based tribes of the United States.
All we have, sir, is all that we have in these rural areas.
Every statistic that was presented to you today, Senator
Tester, that came from reservations in Montana, Wyoming, North
Dakota, South Dakota, all of the land-based reservations. These
statistics come from them.
The majority of the money goes to other places. That's one
of the bottom line problems with this whole system. And they
talk about statistics and increases in Indian country. Nobody
answers questions directly. I mean, if you ask me a question,
I'll answer you directly. You know me. I will be very direct,
sir.
The reason why deaths have increased on Indian reservations
is because the funding's not coming to Indian reservations.
That's why the increase. We're not able to fix our roads like
we used to be able to fix our roads. We're not able to maintain
our roads like we used to be able to maintain our roads. It's a
major, major problem.
The TRIP Act, you know, to me the TRIP Act is a good start
at a piece of legislation, but until the problems are fixed
within the formula, and it's been mentioned before, and
Question 10 is a part of that, but there are lot of other
things within the formula that lead to manipulation and so
forth by those who really just try to build their inventories
just to build their inventories.
Mr. Chairman, IRR funding has been reduced from 76 percent
of the IRR gross funding to larger rural-based tribes in 2006
to 24 percent in 2010. This represents a significant loss of
critical funding at a time of increases in roads funding.
The increases are going to tribes in the urban areas that
have more access roads to their reservation, have more BMTs,
their cost to construct it considerably higher, and even with
the changes presented forth by the Bureau of Indian Affairs
with the non-federal share, instead of funding them at 100
percent, funding them at the non-federal share, it still would
be a considerable amount of money that would go to those areas.
Taken out of Mr. Smith's report, I'd like to read a
statement. It was reported specifically from the United States
Office of the Inspector General, February 1st, 2010. ``We find
significant inaccuracies in roads inventories that affect the
ability of bureaus to identify needs correctly and
inefficiencies in the process that bureaus use to prioritize
their needs.'' The report further states, ``All bureaus have
project implementation plans and the ability to track spending.
Two of the bureaus, however, Bureau of Indian Affairs and
Bureau of Land Management, lack sufficient safeguards to
adequately detect misuse and mismanagement of funds.''
As Chairman Moran has pointed out, we believe that there
has been significant misuse and mismanagement of these
programs.
I'd like to throw a few more statistics at you, Mr.
Chairman. Motor vehicle injuries are the leading cause of
Native American deaths from ages 1 to 34. And they're the third
leading cause of death in Indian country.
Mr. Chairman, to date there have been at least two
investigations by the Inspector General's office on the IRR
program showing negative impacts. The one statement I read
directly out of Mr. Smith's testimony, the other was an
incident in Alaska.
I don't like to just complain. I'd like to propose some
solutions. I don't think it takes an act of Congress to fix
this problem. I think it's an administration problem. I think
administratively this thing can be handled. It can't be handled
politely, sir. I know that. And I know the politics of this
whole thing. When you take money from one place and
redistribute it to another place, it's going to be daunting for
the Senate and everybody involved. And has to be done to such a
way that--I don't know.
But to point out further, we weren't asked when it was
taken from us. We were the third largest recipients of Indian
reservations roads funding prior to SAFETEA-LU. Now we've
became the smallest recipient of Indian reservations roads
funds since its implementation.
Thank you for your time.
Senator Tester. I appreciate your testimony.
[The prepared statement of Mr. Rosette follows:]
Prepared Statement of Timothy W. Rosette, Sr., Chief, Environmental
Health Division, Chippewa Cree Tribe, Rocky Boy Reservation
I. Introduction
On behalf of the Chippewa Cree Tribe, I want to express my
appreciation to the Senate Committee on Indian Affairs, to you Senator
Tester and to retiring Committee Chairman Dorgan, for convening today's
hearing concerning Tribal transportation. Thank you for your advocacy
on behalf of Indian tribes. With all the other problems in our country
today, transportation needs can easily be overlooked. We are grateful
that you are taking a leadership role to address the most basic
protection that we can afford our members today--safe transportation
through our lands.
The Federal Lands Highway Program and the Indian Reservation Roads
Program (IRR) provides funding for a coordinated program of public
roads that serve Federal land transportation needs. The Indian
Reservation Roads (IRR) Program is administered cooperatively by the
Federal Highway Administration (FHWA), the Bureau of Indian Affairs
(BIA), and the Indian Tribes that have self-determination contracts or
self-governance compacts in place for the administration of IRR program
functions and funds. The Chippewa Cree Tribe is a self-governance Tribe
and we administer most Federal programs formerly administered by the
BIA including the IRR Program. For most Indian tribes, the IRR program
is the sole source of funding through which the local Indian
communities receive critically needed transportation improvements to
facilitate better access to jobs, health services, educational
opportunities, and economic development. This program is vital to the
well being of all Native people living on Indian lands throughout the
United States
Over the last five years, as a result of significant increases
Congress has provided for the Indian Reservation Roads (IRR) Program,
some Tribes have achieved many successes and improved transportation
infrastructure throughout our communities and helped educate our
members about road safety. The infusion of American Recovery and
Reinvestment Act (ARRA) stimulus funds put our Members to work and
accelerated road and bridge improvements.
Because of ARRA funding, the Chippewa Cree Tribe was able to seal
cracks, chip seal, replace fences, and replace traffic signs on
approximately 30 miles of BIA system roads as well as providing
temporary employment to approximately 40 tribal members.
While SAFETEA-LU provided a significant increase in IRR funding, we
are dismayed that the land based tribes saw little increase or lost
funding because of the misinterpretation and misapplication of the
regulations by the BIA and FHWA. The IRR program funding formula is an
inventory-driven formula. The accuracy of the BIA's Road Inventory
field Data System (RIFDS) is paramount to ensuring the integrity of the
IRR Program. The misinterpretation and misapplication of the
regulations has manifested itself as the uncontrolled implementation of
the road inventory update process which is used to generate formula
shares for all tribes. As a regional program, without standardized
practices among the BIA Regions the integrity of the IRR program has
suffered to the point that the IRR inventory has become an ``arms
race'' to see who can generate the most funding regardless of who gets
harmed by the process. This uncontrolled implementation of the
inventory continues to go unchecked and is having a devastating effect
on Land Based Tribes located in Montana, Wyoming, Arizona, New Mexico,
Utah, the Dakotas and some tribes in Minnesota.
Because of this uncontrolled implementation of the inventory update
process, that part of the inventory which generates share amounts for
the Land Based Tribes has been significantly reduced from 76 percent in
2006 to 24 percent in 2010 and is declining at an accelerated rate. My
colleague Mr. John Smith will elaborate more on the problems we are
experiencing with the IRR inventory in his testimony which will follow
mine.
The following testimony highlights what the Chippewa Cree Tribe
considers to be the most critical needs for the IRR program and
requests that the Committee consider incorporating them in the new
highway reauthorization bill.
The successes we achieved with our recurring IRR Program funds and
ARRA stimulus dollars must be sustained by Congress in the next surface
transportation bill. I ask that you champion transportation issues for
Indian country in the 112th Congress and introduce the Tribal
Reauthorization of Indian Program (TRIP) legislation (including Land
Based Tribes suggested revisions), which Indian tribes, the National
Congress of American Indians (NCAI) and the Inter-Tribal Transportation
Association (ITA) developed and which this Committee circulated for
comment last year. Please give Tribes a seat at the table in the next
Congress so that the authorizing committees know our needs and see
Tribal consensus recommendations to improve our transportation
infrastructure. We are anxious to contribute new ideas and
recommendations to improve that draft legislation, to build on it and
on the successes Tribes realized under TEA-21 and SAFETEA-LU.
As I will detail more fully below, the proposed TRIP legislation:
increases annual appropriations for the IRR to $800 million
annually, with stepped increases of $50 million thereafter to
grow the IRR Program to just over $1.0 billion at the end of
the next reauthorization;
increases the Tribal Transit Program to $35 million
annually, with stepped increases of $10 million each fiscal
year thereafter;
increases the IRR Bridge Program to $75 million annually,
with stepped increases of $12.5 million thereafter;
establishes two new Tribal Safety Programs (within FHWA and
NHTSA) and appropriates $50 million annually for each program,
to address roadway structural and design safety flaws and
driver, passenger, and pedestrian behavioral issues;
authorizes Tribes to expend up to $500,000 annually for road
maintenance;
make Tribes direct recipients of Federal transportation
program funds;
develops and streamlines award instruments between Tribes
and federal agencies and between Tribes and the States in a
manner similar to the Indian Self-Determination and Education
Assistance Act (ISDEAA), P. L. 93-638, to better ensure that
Tribes actually receive federal transportation funding.
The backlog of unmet transportation construction needs in Indian
Country is in the tens of billions of dollars. Many of the jobs,
educational opportunities, health care and social services for Native
Americans are located at considerable distance from our Tribal homes
and communities. To move closer to these opportunities, we would have
to move away from our lands and homes, undermining the continuing
viability of our communities, Tribal sovereignty, and our Native
culture. This is unacceptable.
Despite these limitations, Indian Country has achieved many
successes in improving transportation infrastructure throughout our
communities in recent years. Many of these successes were fostered by
the passage of SAFETEA-LU which significantly increased program
funding, created the Tribal Transit Grant Program, and authorized the
Secretary of Transportation to enter into direct agreements with Tribes
to receive IRR Program funds, Tribal Transit funds and Scenic Byways
funds rather than requiring Tribes to access these funds through the
Bureau of Indian Affairs (BIA) or as subrecipients of State Federal-aid
funds.
Tribal transportation successes are threatened unless the next
highway reauthorization includes provisions specific to Tribal
governments. We realize this is no easy task for Congress. But
maintaining the status quo of third-world transportation infrastructure
in Indian country comes at a terrible price which Congress must
consider.
II. Current State of Transportation in Indian Country
Indian Tribes have heard a lot about the Administration's ``livable
communities'' initiative to decrease transportation costs, expand
affordable housing, and improve economic competitiveness. Congress and
the Administration need to understand that Indian country lacks basic
transportation infrastructure to realize those goals. Congress must
realize that Tribes have the most rudimentary transportation
infrastructure in the country, and lack the funds needed to construct
even the most basic road improvements such as safer intersections,
railway crossings, breakdown lanes, and basic safety features such as
guardrails, rumble strips, stripping, road reflectors, crosswalks,
traffic lights and streetlamps. Just as importantly, Tribes lack the
funds necessary to perform basic routine as well as emergency road
maintenance to keep our roadways in a safe condition to protect our
Members and other motorists.
Tribal transportation infrastructure still lags far behind
transportation infrastructure in the rest of the country--with tragic
results. The poor condition of many Tribal roads and bridges
jeopardizes the health, safety, security and economic well-being of
Tribal members and all those who travel through Indian Country. Our
inadequate transportation infrastructure hinders every priority of the
Federal Government and Tribes which our respective governments have
sought to achieve over the last few decades--economic development, law
enforcement and other first responders, education, health care, and
housing--because it raises the cost of doing business on reservations
and in Indian communities in every aspect of our daily living.
The unsafe conditions are reflected in our tragic statistics.
Indian Country still has the highest vehicle and pedestrian fatality
rates in the country which in some areas are 3-4 times the national
average. Motor vehicle injuries are the leading cause of death for
Native Americans ages 1-34, and the third leading cause of overall for
Native Americans. The motor vehicle death rate for Native Americans is
nearly twice as high as other races.
Reservation roads also have the highest level of pedestrian
fatalities in the country. American Indians have the highest rates of
pedestrian injury and death per capita of any other racial or ethnic
group in the United States. The leading cause of death for Tribal-
members and Alaska Natives between the ages of 10 and 64 is a motor
vehicle crash. The fourth leading cause of death in these communities
is pedestrian crashes.
We are troubled by the disparity between national traffic safety
statistics and the statistics coming out of Indian Country. The
Government Accounting Office (GAO) and the US Department of
Transportation have published studies that have proven that rural
roads, especially those serving Tribal communities, experience a much
higher rate of vehicle accidents and fatalities, but they receive much
less federal funding than roads serving urban communities. In fact,
Indian reservations and Tribal communities have the highest rate of
vehicle fatalities in the country. While traffic fatalities in the rest
of the nation have been decreasing, the number of fatal crashes in
Indian Country has been continually increasing. In the period from
1975-1979 there were on average 185 fatal crashes on Reservation-based
and Tribal roads each year, with 231 fatalities. In the period from
1998-2002, the number increased by 29.5 percent to 239 crashes per year
with 284 fatalities. These statistics are obtained from data collected
from on reservation crashes only and should not be used to justify
adding off reservation facilities to the IRR system.
III. Roadblocks to Fulfilling the Need in Indian Country
The number one roadblock to fulfilling the needs in our Tribal
communities is lack of funding. Too often Congress, the Department of
Transportation, and the Department of the Interior ignored their trust
responsibility and treaty obligations to the Indian nations and Native
people to provide safe and efficient transportation systems. While the
Department provided $1.275 billion for the High Risk Rural Roads
Program and $700 million for the Highway Safety Program to State and
local governments in FY 2008 to address behavioral and design safety
issues, the Department provided less than $5 million per year for all
565 federally recognized Indian Tribes (which averages to $8,850/Tribe
compared to an average of $40 million/State). Tribes had to compete for
this wholly insufficient level of funding. After grant development,
grant management and other transactional costs are taken into account,
the few successful Tribal grant recipients typically have only a few
thousand dollars remaining to begin to address the huge backlog of
dangerous road conditions and unsafe driver behaviors. Even if
considered on a per capita basis, Indian country receives pennies on
the dollar for their transportation needs.
We recognize that the nation is going through economic hardship.
For most Tribes, it is our way of life. We further recognize that the
budget will likely be tight for the next few years. One way to help
fulfill Tribal funding needs for transportation infrastructure without
raising the cost to the nation is to provide better access for Tribes
to federal-aid highway system and other federal appropriations made to
State and local governments. The layers of administrative bureaucracy
that Tribes must go through to gain access to federal transportation
funds passed through to the States increases our costs and provides us
with far less money than we need to address our transportation needs.
Unfortunately, many State and local funding agreements are ill-
suited for the unique government-to-government relationships that exist
between Tribes and States and have become obstacles to the award of
these much needed funds to Tribes. For example, State funding
agreements are usually written either as standard commercial
procurement contracts or as ``local use'' agreements designed to award
funds to counties or municipalities. When these standard agreements are
applied to Tribes, they often include broad indemnification provisions,
unnecessarily broad waivers of sovereign immunity, and provisions
imposing State administrative and accounting rules on Tribes. Nearly
all of these agreements require Tribal governments to appear in State
court in the event of a dispute. We are separate sovereign
governments--not subdivisions of the States--and these provisions are
wholly unacceptable and inappropriate for use in transferring State
transportation funds to Tribal governments.
While some State and local governments may be willing to modify
funding agreements to accommodate Tribal concerns, negotiating such
modifications can be costly and time consuming. Most often, State and
local governments refuse to modify standard agreements to address our
concerns. The solution is simple: make Tribes eligible direct
recipients of federal transportation programs.
Tribes are also faced with disproportionately burdensome
administrative responsibilities that waste our already insufficient
transportation funding. For example, the finance, procurement and
auditing systems of Tribal governments are primarily geared toward
ensuring compliance with the Indian Self-Determination and Education
Assistance Act, P.L. 93-638, grant and contract requirements. It is a
waste of precious resources for the Department to require Tribes to
comply with redundant and sometimes conflicting grant and contract
requirements.
Also, the lack of access to funds for maintenance requires Tribes
to expend a disproportionate amount of funds undertaking large
construction projects because of the disrepair of reservation roads or
bridges. Maintaining transportation infrastructure in a state of good
repair extends the useful life of these critical routes. It improves
safety at a much lower total cost than the reconstruction of long-
neglected roads and bridges. When Congress, in SAFETEA-LU, authorized
Tribes to spend up to 25 percent of their IRR Program dollars for
maintenance, it expressly stated that the BIA retained the primary
responsibility, including annual funding request responsibility, for
road maintenance programs on Indian reservations. Congress also
expressly stated that the Secretary of Transportation must ensure that
IRR Program funding be made available for maintenance of Indian
reservation roads for each fiscal year and that these funds are
supplementary to, and not in lieu of, any obligation of funds by the
BIA for road maintenance on reservations.
Unfortunately, these Congressional requirements have not been
fulfilled. As funding for the IRR Program goes up, 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. Tribes must retain
the authority to determine whether to expend a portion of its IRR
Program funds on road maintenance. The agencies have let Indian Country
down and not fulfilled their obligations.
IV. Specific Proposals
1. Increase Funding for the IRR Program, Road and Bridge Maintenance,
and Safety and Transit Program in the Next Highway
Reauthorization Bill
The backlog of unmet transportation construction needs in Indian
Country is in the tens of billions of dollars, and increases by tens of
millions of dollars each year. The amount of funds provided to Tribes
to address these unmet needs does not even come close to being
adequate. As stated above, if Tribes are to maintain the positive gains
we have made under TEA-21 and SAFETEA-LU and keep our progress going,
we request that Congress authorize funding increases in the next
highway reauthorization bill for the IRR Program, including road
maintenance, Tribal Safety Programs, the Tribal Transit Grant Program,
and the IRR Bridge Program. The state of infrastructure in Indian
country, like anywhere else, determines the health and vitality of our
economies and of our people. Congress must address the declining status
of America's transportation infrastructure and must include Indian
country in programs that will improve transportation infrastructure and
transit and break down barriers between Tribes and surrounding
communities.
I would also like to advocate for additional funding for road
maintenance. Tribes receive so little road maintenance funding that
there is no allowance for emergency needs to address life threatening
circumstances that result from ``a catastrophic failure or natural
disaster.'' Every BIA Region experiences some form of emergency
maintenance--ice and snow, traffic control, rock slides, washouts,
flooding, wildfires, and hazardous waste spills--but lacks the
resources to respond to them.
On average, six cents of every dollar is spent on road maintenance
in Indian Country. This does not protect the investment that the United
States and Tribes have made in transportation infrastructure. This
funding gap between construction and maintenance exacerbates the
backlog of unmet construction need by cutting the useful life of new
built or reconstructed roads in half and will lead to more traffic
injuries and fatalities. It makes no sense to expend millions of
dollars to construct a new road if that road is poorly maintained. No
one knows the routes through our communities better than our Tribal
governments. Our Tribal government should be authorized to decide what
amount should be spent on maintenance--and receive adequate federal
appropriations--to preserve the lifetime of the road and to protect the
life and health of its members.
2. Tribes Must be Eligible Direct Recipients of Federal Transportation
Funds
For these necessary transportation programs to work in Indian
communities, the funds must reach the intended beneficiaries.
Unfortunately, this is not the case. As mentioned above, when Tribes
are not eligible direct recipients, they must apply for State
transportation programs funded by the United States. More often than
not, Tribes do not receive the federal funds awarded to States and
local governments. This situation exacerbates the history of Tribal
exclusion by State and local governments from participating in regional
community development planning.
It has long been recognized that regional planning works best when
local government officials are allowed to establish their own
priorities and to propose solutions that address local problems and
needs. Recently, however, Tribal, State, and local governments have
begun to seek a more collaborative approach to transportation
challenges faced by their regions. These fledgling efforts make clear
that where Federal programs provide funding to Tribes directly, State
governments are more likely to work cooperatively with them.
Including Tribes as eligible direct recipients in all of the
transportation infrastructure grant programs would support the further
development of these Tribal, State, and local relationships to address
community development challenges, and would help all governments
increase their available funding by making it possible to join forces,
and funds, with other governmental entities. Such direct funding would
also significantly cut down on Tribal administrative costs.
I will say it again: Tribes are separate sovereign governments.
Tribal governments have demonstrated that they possess the capacity to
deliver successful transportation programs despite the many obstacles
that stand in our way. Across the country, Tribes are increasingly
serving our communities by assuming the Secretary of the Interior's
responsibility for administering the IRR Program funds by entering into
Self-Determination Contracts or Self-Governance Compacts with the
Secretary of the Interior or by entering into FHWA IRR Program
Agreements with the Secretary of Transportation. We are sovereign
nations, we are responsible for providing basic governmental services
to our members, and we are now accustomed to administering funds under
these contracts, compacts, and agreements.
3. Streamline the Grant Award Process by Which Federal Transportation
Funds are Distributed to Tribes
Streamlining the grant award process will reduce transactional and
administrative costs associated with the award of federal
transportation safety grants and will leave more funding available to
us to do the ``on the ground'' work needed to provide safe
transportation infrastructure for our members and guests in our
communities. We ask that Congress work with the Department of
Transportation on the next highway reauthorization legislation to
develop a uniform set of Tribal grant and contract requirements based
on the ISDEAA.
Thank you for allowing me to present this testimony for the record.
I hope my comments this afternoon will lead to productive action to
improve the delivery of transportation services to all Indian tribes
and correct the anomalies that are having a negative effect to the Land
Based Tribes. I will be happy to answer any questions you may have.
Senator Tester. John Smith.
STATEMENT OF JOHN P. SMITH, DIRECTOR, DIVISION OF
TRANSPORTATION, EASTERN SHOSHONE AND NORTHERN ARAPAHO TRIBES
Mr. Smith. Thank you, Senator.
Mr. Chairman, I would like to request that you also forward
my regards and appreciation to Senator Barrasso for being able
to represent the great state of Wyoming. Tim calls it Southern
Montana. It's easier than Northern Wyoming.
It's a great pleasure to have you here and to actually
discuss with people who can render the completion of this
enormous problem. Our tribes here are working under the Indian
Reservation Road System under two separate rules, Title 23 and
Title 25, which is complex in tribal members' thinkings of what
the responsibilities are when they are both shared equally, not
only with the BIA, but also with the Federal Highway System and
the administration in which oversees our road program on behalf
of our great--my good Crow brother in Washington, D.C.--he was
adopted by the Crow tribe--and to resolve these issues on his
behalf and our behalf.
When we talk about the $600 billion of need, we need to
have definitions of need versus greed in the system. We have
people putting on inventory items into the Road Inventory
System that do not properly provide any services to Indian
people. But we're asked in the Rocky Mountain Region to sit by
and be patient.
Many of our long-term road projects take four to five years
to complete, as we develop them in segments. We have to clear
earth, we have to clear the old road bed, put it to the side,
widen the road to new standards. Our roads are narrow with
maybe a foot off the road to a two-foot embankment, some places
in lengths of 25 feet to 50 feet, which is a critical matter.
If you go off that road by accident, bad weather, you're going
to roll, sir. That is a honest safety situation for our tribes
to egress onto medical facilities, emergency care, just going
to get delivery of goods and services for their people back
home in their household. Plus, our school children ride over
those precarious roads.
During the flood of last year we lost a bridge that got
flooded out. We had to go for two months to dirt roads to get
back onto the road situation, other than go 80-mile detour one
way and a 95-mile detour to improved roads to get from one end
of the reservation to the other end of the reservation because
our conduit was destroyed by the flood. We do now have a
temporary bridge in place. And we're not experiencing that
condition presently, but it did take a toll on what our
business could be done. We paved a road on the west-half of the
river and our gravel sources and our asphalt was on the east-
half. We had to ensure extra cost to go through the town of
Lander to deliver asphalt to our roadway in order to get it
completed, and that road began construction in 2002 in
segments. It was a BIA construction project when the tribes
began to take over our own construction program under the 638
Process. We now do operate our road construction program as
well as our maintenance program on behalf of the Federal
Government.
We do have safety regulations in place that were put into
by the tribe. We have a mandatory seatbelt use. We also have
limited intoxication for alcoholic beverages to be a 0.5,
rather than the 0.8 like the State of Wyoming, which has
greatly curbed our alcohol use. And we've taken a concentrated
effort to curb the driving while under influence.
We participated in Bismarck, North Dakota, along with the
other states, state transportation Officials from the States of
North Dakota, South Dakota, Montana and Wyoming where we asked
Mr. Secretary to consider funding programs along with road
maintenance for increased funding for our programs. We were
speaking for our needs. We believe that people as we progress
along will have to come to an agreement of how they're going to
submit inventory items. We were the first region that completed
our inventory update. We were the first region that completed
our IRR profit contracts for the use of those funds. Mr.
Rossette here was the first tribe in the nation to complete his
ARRA projects within one year of the same funding cycle. Sadly
he lost a lot of that during flood season, all his beautiful
work, and he's getting that restored.
I know I'm running out of time. My council always gets
after me for talking too much. And so I don't want to take up
any more time. But it is a serious need, and we do need help in
resolving this issue. It's not going to go away by itself, I'm
afraid. Thank you.
Prepared Statement of John P. Smith, Director, Division of
Transportation, Eastern Shoshone and Northern Arapaho Tribes
Introduction
Good afternoon, Mr. Chairman and members of this Committee. My name
is John Smith, Transportation Director for the Shoshone/Arapaho Tribes.
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 Joint Business Council Chairmen Ivan Posey and Harvey
Spoonhunter, and the people they represent who reside on the Wind River
Indian Reservation in Wyoming, 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 United
States Government fulfills its trust responsibilities and honors its
obligations to the Eastern Shoshone and Northern Arapaho tribes 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 Wind River Indian Reservation
Compared to other Tribes, the Shoshone/Arapaho Tribes are medium-
sized with more than 14,500 enrolled members, most whom live on our
Reservation. The Wind River Indian Reservation is located in a rural
area within the boundaries of the State of Wyoming. Our Reservation has
over 2.2 million acres of tribal land held in trust for our Tribes by
the United States. While over time it has been diminished from its
original 3.3 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 Wyoming. 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 Wyoming is at approximately
11 percent, unemployment on our Reservation remains at an outrageously
high level of 85 percent. The lack of adequate transportation
facilities, communications, and other necessary infrastructure
continues to significantly impair economic development and job
opportunities.
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.
Transportation Reauthorization of Indian Programs (TRIP) Act
The Shoshone/Arapaho Tribes are grateful for the leadership role
this committee has taken to support the Tribal initiatives in the
upcoming reauthorization of SAFETEA-LU. Under this leadership we are
certain that the issues and concerns of all tribes will be considered
in the reauthorization of SAFETEA-LU. We are thankful for the
opportunity to comment on the TRIP Act.
IRR funding serves a crucial need in Indian country. While Congress
has increased IRR allocations in recent years, the funding continues to
lag far behind an even faster-growing need. When BIA officials abuse
their powers and arbitrarily divert IRR funds to non-BIA system or non-
Tribal facilities, we fall farther behind.
The Shoshone/Arapaho Tribes has reviewed the provisions of the
proposed Reauthorization Bill, published by the Senate Committee on
Indian Affairs, to amend the SAFETEA-LU, titles 23 and 49, United
States Code, and the Indian Self-Determination and Education Assistance
Act also cited as the ``Transportation Reauthorization of Indian
Programs (Trip) Act''.
While we agree with most of the provisions of the proposed TRIP
document, we disagree with certain items as contained in the proposed
Bill and we also find that there are many on going issues negatively
affecting Land Based Tribes that are not addressed in the proposed
bill. As such we offer our comments as Follows:
The proposed TRIP Bill as written does not address the issues and
concerns confronting the Land Based Tribes regarding the diversion of
Indian Reservation Road Program funds meant for the benefit of Indians
to non-Indian entities. The percentage of funding generated by non-
Reservation facilities is near 80 percent. We are concerned that if
this trend continues, the IRR Program will cease to exist and Tribes
will have to access their Road construction funding through the States.
Of particular concern, we see that the injury and death statistics
used in justifying funding increases are taken from statistics on roads
actually located on ``Indian Reservations''. While this is all well and
good to document the appalling conditions on Indian Reservations, we
are dismayed when we see news articles of Indian Tribes giving millions
of IRR dollars for construction of Interstate Highways and Bridges. We
ask how does donating IRR funding for construction of an interstate
highway address the appalling conditions on Indian Reservations.
We firmly believe that the Indian Reservation Roads Program was
established for benefit of Indians living on Indian Reservations. This
is a Trust Responsibility of the Federal Government guaranteed by
Treaties between Indian Tribes and the Federal Government when Indian
Tribes gave up their land and were forced to live on Reservations.
For the past 4 years the Council of Large Land Based Tribes has
been attempting to correct the misinterpretation and misapplication by
the Bureau of Indian Affairs (BIA) and the Federal Highway
Administration (FHWA) of the recently enacted regulation of the Indian
Roads Program as contained in 25 CFR 170. This misinterpretation and
misapplication manifests itself as the uncontrolled implementation of
the road inventory update process which is used to generate formula
shares for all tribes. This uncontrolled implementation of the
inventory continues to go unchecked and is having a devastating effect
on Land Based Tribes located in Montana, Wyoming, Arizona, New Mexico,
Utah, the Dakotas and some tribes in Minnesota.
Because of this uncontrolled implementation of the inventory update
process, that part of the inventory which generates share amounts for
the Land Based Tribes has been significantly reduced from 76 percent in
2006 to 24 percent in 2010 and is declining at an accelerated rate.
We feel that the following critical issues are the root cause of
the rapid decline in funding for the Land based Tribes and must be
corrected in the Reauthorization Bill in order to return this program
to what Congress intended it to be.
Based on the above, the Shoshone/Arapaho Tribes have identified
several critical items that must be incorporated into a new
reauthorization bill in order to make 25 CFR 170 a useable rule that is
not biased against Land Based Tribes constrained by reservation
boundaries and geographical locations. Those items are as follows:
Define Access--The current statute and regulation does not
define ``access'' nor does it place any limit on to what extent
the route can be included in the IRR inventory. Because of this
ambiguity, the Bureau of Indian Affairs is allowing tens of
thousands of non-BIA miles or non-Tribal system routes into the
IRR inventory. These routes include Interstate Highways,
National Highway System Roads, State, County and Township
Roads, Federal Forest Roads, and proposed roads. Most of these
routes are not located within nor do they provide access to
Indian or Native lands with some even being located in
designated Road less and Wild areas.
Better define the term ``Project''--the current regulations
do not define ``Project''. Most of the non-Federal roads
included in the IRR inventory are generating funding regardless
if it is a project or not. The BIA and FHWA are allowing tens
of thousands of miles into the IRR Inventory only to generate
funding with no intention of ever building a project on these
facilities.
Define Relative Need--We believe that the term ``Relative
Need'' is being misinterpreted by certain tribes and the Bureau
of Indian Affairs Central Office personnel. By allowing
thousands of miles of State and County Roads in the IRR
Inventory (now in excess of 130,000 miles) this does not
accurately represent the actual transportation needs of tribes.
How are the needs of a tribe that is located close to
Interstate highways, high volume US highways or urban areas and
surrounded by high volume roads and streets that are owned by
others relative to the needs of a tribe that is located on a
remote reservation and whose only source of funding is the IRR
program?
Land Based tribes cannot compete with tribes that are located close
to urban areas and whose needs are being addressed by other public
agencies. A concise definition of ``Relative Need'' is essential in
order to ensure the intention and to improve the consistency of the
methodology applied by each BIA Region.
Restrict Proposed Roads in the IRR Inventory--Proposed roads
are being added indiscriminately to the IRR Inventory System.
The BIA and FHWA are allowing thousands of miles proposed roads
into the IRR inventory only to generate huge funding amounts.
The manner in which the BIA is allowing proposed roads into the
system is inconsistent whereby certain BIA Regions are allowed
into the inventory and other Regions are not.
Establish an IRR Inventory Oversight Committee--From the
uncontrolled and indiscriminate manner in which inventory data
is being added into the IRR Inventory, (33+ thousand miles in
2004 to 120+ thousand miles in 2009) it is obvious that neither
the BIA nor the FHWA are providing any quality control or
quality assurance of the inventory data that is being used to
calculate funding for IRR distribution. Or worse, the quality
control of the data is disparate or discriminating and is not
applied consistently across all tribal data. This is evidenced
by the fact that Tribes in certain Regions are being allowed to
input fraudulent data only to generate funding. The owing
agency has no intentions of doing a project on the route, yet
the tribe can put it on their inventory and generate funding
indefinitely.
An Inventory Oversight Committee made up of Tribal Transportation
Officials must be established to monitor the inventory data that is
being submitted. This committee will review all inventory data and will
decide what data is eligible to be included into the official
inventory.
Indian Reservation Roads Inventory and Its Impact on Funding
Under the negotiated rule making 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 four and one
half years to complete and it took the BIA another two and one half
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.
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 Facilities 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 program are receiving a
smaller slice of the bigger funding pie.
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 this title of
chapter 53 of title 49 and that provides access to or within Federal or
Indian lands.'' 23 USC 120(l). 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 thirteen billion dollars. 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.
A study conducted by the National Center for Statistics and
Analysis (NCSA) and sponsored by the National Highway Traffic Safety
Administration found that 5,962 fatal motor vehicle crashes occurred on
roads under the jurisdiction of Indian reservations between 1975 and
2002, an average of 213 fatal crashes per year. In 2002, the number of
crashes on reservations reached a new high of 276, representing a 4.5
percent increase over the previous recorded high of 264 crashes in 1996
and a 52.5 percent increase over the 181 crashes in 1975. Over the
years, these crashes have resulted in the loss of 7,093 lives of which
3,322 were drivers, 2,717 were passengers and 1,001 were pedestrians.
The objective of the study was to examine the characteristics of
fatal motor vehicle crashes that occurred on federal lands,
specifically, those lands that have been designated as Indian
reservations. Using data from 1975-2002 NCSA's Fatality Analysis
Reporting System (FARS), Characteristics of these crashes were examined
to better understand the circumstances that are involved in these
particular types of crashes.
Roads on Indian reservations are considered Federal roads due to
the fact that Indian reservations are considered Federal lands and the
Federal Government is responsible for constructing and maintaining
these roads. State and County roads are not considered Federal roads
and they have separate funding sources and should not be siphoning off
critical funding meant for Indian Reservations. To allow the
hemorrhaging of funds away from Land Based Reservation to continue is a
travesty and Land Based Tribes will never be able to reduce these
tragic statistics.
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.
The Land Based and rural tribes continue to lose millions of
dollars of IRR funding because the BIA and FHLO are misinterpreting the
provisions of SAFETEA-LU and 25 CFR 170. The mileage of the IRR system
has grown from approximately 62,000 miles in 2004 to over 126,000 miles
in 2010. This growth can be directly attributed to the addition of
roads that are the responsibility of other public authorities (i.e.
States and Counties). It is very apparent that these roads are being
added to system only to generate funding for a particular tribe with no
intention of ever constructing these roads. We have verifiable proof
that many of these roads are being added to the IRR inventory with
bogus data. This practice is favoring tribes whose lands are located
near urban areas with high volume traffic and is harming rural tribes
with large land bases whose system is comprised mainly of BIA and
tribal roads. We have tried to correct this problem administratively
and have met with no success. Critical funding continues to hemorrhage
from Land Based reservations and people to those tribes with high
volume State and County roads included in their IRR inventory. The IRR
program has become a state and county roads program.
This fact has been further substantiated by the United States
Department of the Interior, Office of the Inspector General's
evaluation report on the Department of the Interior roads programs,
dated February 1, 2010. That report specifically states ``We found
significant inaccuracies in roads inventories that affect the ability
of bureaus to identify needs correctly and inefficiencies in the
process that bureaus use to prioritize their needs''. The report
further states ``All bureaus have project implementation plans and the
ability to track spending. Two of the bureaus, however, Bureau of
Indian Affairs (BIA) and Bureau of Land Management (BLM), lack
sufficient safeguards to adequately detect misuse and mismanagement of
funds.'' Although the problems have been identified, it appears that
the BIA is ignoring these findings and the diversion of critical road
construction funding for Land Based Tribes continues.
The issue remains urgent to land based tribes since we deal with
critical on-reservation vehicular transportation needs. Our needs arise
from tribal and BIA roads, and meeting them relies primarily on IRR
funding. The geographic isolation of most land based tribes prohibit
them from competing in a system of adding Interstates/NHS highways,
State and County roads onto the IRR system just to reap the inflated
formula amounts. Also most land based tribes' priorities are not
others' interstate or state roads, but the very roads they must travel
to get the basic medical and educational services. On the BIA system
alone, there is a documented backlog of $13 Billion just to improve the
system to a safe and adequate standard. At present funding levels, and
without further deterioration of the system, it would take 28 years to
address this need. Allowing State and County roads into the IRR system
simply to generate funding is siphoning off critical road construction
funding for tribes whose only source of funding is the IRR program.
BIA/FHWA Proposed Fix to 25 CFR 170 Question 10
The BIA and the FHWA are proposing an administrative fix to 25 CFR
170 Appendix C to sub-Part C Question 10. Of particular concern to the
Shoshone/Arapaho Tribes is the Bureau of Indian Affairs and Federal
Highway Administration's interpretation of certain critical items of
Question 10 which we feel are flawed and should be reassessed to ensure
that they are interpreted correctly and in accordance with the intent
of the original regulation as negotiated and agreed to by the Tribes
and the Federal Government. Of particular concern are the following
items:
The proposed fix fails to correct the problems that are
negatively affecting the Land Based Tribes in that non-BIA
system and non-Tribal facilities will still be able to generate
funding at 100 percent.
23 USC 120(l) clearly restricts the use of IRR funds to the
non-Federal share for any project that is funded with section
104 funds of this title or chapter 53 of title 49.
The proposed fix will allow local roads and minor collectors
to generate IRR funding at 100 percent.
23 USC 101(5) clearly indicates that local roads or rural
minor collectors are not classified as ``Federal Aid Highways''
therefore are not eligible for federal funding. For a non-
Federal or non-Tribal road to be eligible to IRR funding, it
has to be eligible for other Federal funding. (See 25 CFR 170
appendix C to subpart C--question 10).
The proposed fix will change the process of determining
eligibility of non-BIA or non-Tribal eligibility form weather
it meets the definition of a Federal aid highway to determining
eligibility by Functional Classification.
It is our understanding that a Federal Regulation can only be
changed through the negotiated rulemaking process. We find that
changing a non-BIA or non-Tribal facility's eligibility from
whether it meets the definition of a Federal aid highway to
determining eligibility by Functional Classification is a major
change in the regulation. We question the legality in this
change as well as the matrices for the transition year and the
final cannot be implemented as proposed.
The BIA made significant changes to Question 10 from what
was proposed by the negotiated rulemaking committee. These
changes, although subtle, allowed thousands of miles of non-BIA
and non-Tribal miles to generate funding at 100 percent.
The proposed BIA/FHWA administrative fix should not be implemented
until all of the questions and concerns of Land Based tribes are
satisfactorily answered and resolved.
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 BIA
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 Road Maintenance Program has been chronically underfunded
under the U.S. Department of the Interior. This program is included in
the Tribal Priority Allocation (TPA) and must compete with other Tribal
social programs for funding. The funding invested in Road and Bridge
Construction on Indian Reservations is being compromised due to
inadequate maintenance funding. While funding for Road Construction has
increased the amount of funding available for Road Maintenance has
declined. Consequently, roads and bridges constructed on Indian
Reservations last about half of their design life. The maintenance of
these facilities is a Federal responsibility and the health and welfare
of Tribal members who have to use these roads is at risk on most
reservations.
The BIA receives approximately $25 million per year as part of its
lump sum appropriation for 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.
It seems inevitable that a gas tax increase will be required to
fund the nearly bankrupt Highway Trust Fund. If a gas tax is
implemented the Shoshone/Arapaho would advocate for a portion of the
increase (probably a half or one cent) be set aside for the Federal
Lands Programs and include funding for the BIA road maintenance system
out of this amount.
Conclusion
On behalf of the Shoshone/Arapaho Joint Business Council, 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 is happening with the current
interpretation by the BIA and FHWA that is having negative impact on
the funding for Land Based Tribes. We are confident that with your
help, the IRR program will be restored to what it was originally
intended-building and maintaining infrastructure on Indian Lands. Thank
you for inviting the Shoshone/Arapaho Tribes to present this testimony.
If we can answer any questions, now or at some future date, please do
not hesitate to ask.
Attachment
Senator Tester. Thank you, John. I appreciate your respect
for the time. I thank you for your comments.
Before we get into questions, once again I would just ask
if you've got a comment during our public comment time, raise
your hand so Virginia can get you. Anybody that's not on this
list, if you still want to comment, get ahold of Virginia.
Let's go to questions. So I'm going to make the assumption
that you've all been involved with the Q-10 consultations. Fair
assumption?
Mr. Steele. Yes.
Senator Tester. Good. So I'll just start with you, Chairman
Moran. What did you learn from the Q-10 consultations?
Mr. Moran. The main thing I picked up on that was that the
funding that's there is not done in an ethical manner. It's not
done in a sharing that comes from data that's from an Indian
reservation. It comes from data that's put together there from
past records, and records sometimes aren't current. And it's
used accordingly.
Senator Tester. Okay. Jim, same question. What'd you learn
at the Q-10 consultations?
Mr. Steele. I think one of things that we've learned in
this whole process, including the Q-10 and other things and
other meetings, is that one thing for sure is we need some sort
of standard quality assurances to submission of the numbers
into the data. What kind of data is being submitted? Is it
accurate?
And we had a meeting just before you arrived, Senator, on
this issue, and it was very telling.
Our region is going by the book. We report on the
conditions of our roads, and that's what we submit. There's
regions that submit the quality of roads, but it's not the
actual on-the-ground quality of those roads. And so that's
troublesome when you have inaccuracies in the Bureau
reporting--the people in different regions reporting
inaccuracies and entering inaccuracies into the system to gain
the extra dollar over other regions. That's not fair, and
that's not equitable, and that's not Indian Reservation Roads.
And so I would contend, Senator, that we either need to
change the IRR name to something else. It's obviously not
Indian Reservation Roads. But if we're going to keep the name
IRR, we need to put it back the way it was.
And I would contend once again that if we're going to keep
this system the way it is, it's unfair, inaccuracies being
reported and not being corrected, then change the name from IRR
to something else, State Highway Fund or Extra County Fund for
their roads. But it's certainly not Indian Reservations Roads.
Senator Tester. Thanks, Jim. Tim, what did you learn from
the Q-10 consultations?
Mr. Rosette. It's complicated, you know, very complicated.
There's a lot of issues out there outstanding. I've been doing
this for over five years, and I'll tell you, Senator Tester,
we've been writing letters for years and years and years, and
I'll tell you what, nobody listens. Nobody cares. I don't know.
Toss them over to the side. I don't know what they do with it.
You know, until finally this year with Assistant Secretary Echo
Hawk. He finally tried to grab that bull by the horns. But, you
know, it's a big bull, and he does need help.
Senator Tester. Okay. John Smith, same question. What have
you learned from the Q-10 consultations?
Mr. Smith. We still have a long way to go in resolving the
issues that intertwine with Q-10. Q-10 is a conglomerate of
various factors that are very technical in nature.
When you talk about the cost to construct, when you talk
about vehicle miles traveled, when you talk about the integrity
of submission of information, it is very complex.
I think we need to look at a possible simpler solution that
would not be quite as ambiguous and be as broad as it is now to
narrow it down to simple activities, such as population, land
base, and road miles, rather than VMT.
VMT is a very subjective matter, which comes to vehicle
miles traveled. We cannot compete here in Montana and Wyoming
with vehicle miles traveled as they can in a small-acre
reservation in, say, eastern Washington, which is on I-5. They
have an interstate and a turn-off into their reservation, and
it's considered an Indian road. When you have 28,000 vehicles
per day times 365, the VMT escalates at an enormous rate.
We need to have factors that are very essential to Indian
reservation way of life and our needs for assistance. We have,
in some cases, lost tribal members who have called for
emergency services, which then the ambulance has to come for a
maybe 45-minute tour. And then they to have a police officer
come and verify it is a sound accident, which takes time. And
then they have to be retrieved and put in an ambulance to get
to town. That's more than an hour. Most fatalities are
considered, effectively, if they're treated within the first
hour, the golden hour of life. We don't have that luxury, sir.
Senator Tester. Okay. Each one of you represent different
entities, and I think you're fully aware that they're in the
process of working on a new Highway Bill coming up this next
year. Do you have priorities for that bill?
And we'll start with you once again, Chairman Moran, if you
have priorities for the upcoming Highway Bill reauthorization?
Mr. Moran. The biggest priority I think would be to get
Section 10 of that bill, rename the bill, get Section 10 into
an accurate distribution-type formula so that the way the funds
are going to be distributed, are distributed equally. To ensure
that that's done, I think that has to be.
There's a lot of discomfort among us tribal leaders. And we
don't want to say that some tribes are treated because of the
noise they make. But sometimes that formula is distributed and
it happens that way. I think it will make everybody happy.
Senator Tester. Okay. Jim, priorities for the next Highway
Bill reauthorization?
Mr. Steele. I think if there's a way to get over this big
hurdle or the bill that Mr. Smith was talking about, I think
each individual reservation has their own specific priorities
in terms of the bill. And usually we take the lead of our
member tribes, so I'll defer to Mr. Smith and Mr. Rosette. They
deal a little more specifically on those areas. And so they
bring those to our body and will push those forward. Generally,
we're united on our priorities. And as Mr. Smith and Mr.
Rosette are working on them and they come up to our council,
we're going to be standing 100 percent behind their efforts. So
I'd defer to them to answer more specifically.
Senator Tester. Good, Jim.
Tim.
Mr. Rosette. I agree with Big John on one of the proposals.
You know, it has to be fair and equitable distribution of
funding. And please don't consider me an advocate of the
solutions for any tribe, because I'm not. We need to be fair
and equitable. But fair and equitable has not been the case
over this last Highway Bill, especially for rural land-based
tribes. The distribution of their distribution is not there,
sir.
And I think it needs to be toned down and simplified. One-
third, one-third, one-third. Vehicle miles traveled has its
places, but not with us, because we cannot equitably distribute
on vehicle miles travelled. That in itself, even with the
proposed changes to Question 10 right now, vehicle miles
traveled even at the non-federal share are massive amounts that
we can't compete.
We don't have--You know where we live. You know.
Senator Tester. I do.
Mr. Rosette. We don't have it. What we have is what we
have, you know. There's just nothing, you know, unless we come
down to that realization and we can get NCAI and the rest of
them and they can come aboard and say, Hey, let's just do this
and do it right. Because it comes down to what's right and
what's wrong. And what's going on is wrong.
Senator Tester. Okay. John.
Mr. Smith. Thank you, sir. I think we've maintained the
program pretty much as it is. We do have road construction. We
have road maintenance. We do have the need for safety
improvements. Also with that, we have needs in transit. The
ability of getting our elders to and from the clinics,
treatment, pay their bills in town, give them a ride with this
current economic condition. Our seniors pay people to take them
to town. They give them gas money to take them to town and come
back, pay their bills. And senior citizens are the ones who are
the best bill payers in the world. Our water departments have
delinquency rates among younger people, but very little with
the senior citizens. They have their lives budgeted, they take
care of themselves, and they need assistance. And we as Indian
people have always prided ourselves on taking care of our
elderly.
And I think that also we would recommend that we would work
through the Montana-Wyoming Tribal Leaders Association, our
council, in preparing our issues and our needs for
transportation improvements. We do have a committee chairman
who currently serves as our representative in our
transportation committee. And we usually work most of our
issues through that process. Thank you.
Senator Tester. Thank you. And I want to thank you all for
your presentation and your answers to the questions.
We've got 110 people at this hearing. That's more than
probably any D.C. hearing we've had in a while. So we
appreciate the public being here. I want to express my
appreciation to this panel and the preceding panel for their
honesty and their eloquence. Thank you for being here.
We're going to move now to the public comment section. So
while this group disbands, we will do that.
Yes, Bud.
Mr. Moran. Senator, I want to thank you and thanks for your
support people. They've been very helpful here. And it's been a
pleasure to have you here and have this meeting with them. It's
been really good.
Senator Tester. I think we're going to make a proposal to
have all our Senate Indian Affairs hearings here; how's that?
The public comment section, and I would ask everybody to
try to keep it to three minutes. If some of you came so well
prepared that you have a written statement, that's outstanding.
You can turn that in, too. I have a list here that Virginia has
given me. There's a mic in the center of the room. And so we'll
ask you to go to it.
I'm going to start with Jim Lynch, who's Director of the
Montana Department of Transportation. Jim, you'll get the ball
rolling. And then after Jim gets done, if Kevin Howlett wants
to get in line, we'll go to Kevin. Then we'll just kind of go
down the list. Okay. Jim, good to have you here.
STATEMENT OF JIM LYNCH, DIRECTOR, MONTANA DEPARTMENT OF
TRANSPORTATION
Mr. Lynch. Senator Tester, thank you very much for asking
me to speak. I want to thank Chairman Moran and the Salish-
Kootenai people who have opened up their home for us all here
today to have this hearing.
I listened to the panel and I've heard some of the
concerns, and I think the common denominator here is Indian
Reservation Road investment is very important to the land-based
reservations here in the state of Montana.
And to give you a little bit of a highlight of the Montana
Department of Transportation and our relationship with the
existing land-based reservations in the state of Montana, it's
been a very positive one over the last five years. The
Department of Transportation, and I'm saying this for an
important point to make, since 2006 we've invested $325 million
in highway infrastructure on state highways that are inside the
exterior boundaries of Montana reservations. We've included $4
million in transit, $3 million in training grants, $1 million
in highway safety investment, $6 million in community
transportation enhancement projects, and $150,000 for safe
roads to school programs.
And I'm saying that not to make the point that they don't
need Indian Reservation Road investment, but just the opposite.
I am making that point to let you know that state highway
departments in Montana have taken a very responsible road in
using its core highway dollars to take care of its highways,
even the highways within the existing boundaries of the Native
American Indian reservations in Montana. That allows the Indian
Reservation Road Program revenue that the reservations receive
to be spent on their roads. And I think it also demonstrates
the importance of that investment for those roadways.
We have a great relationship with the seven land-based
reservations in the state of Montana. And I can assure you as
the Director of Transportation who's been on every one of those
reservations, I can assure you there's tremendous need for
highway infrastructure investment. And it's not state highways,
but actually truly Indian reservations roads. Thank you for
your time.
Senator Tester. Thanks, Jim. Before you give up the mic,
tell your name and position, that way you got it on the record.
Mr. Lynch. I am sorry, Senator. My name is Jim Lynch. I'm
the Director of the Montana Department of Transportation.
Senator Tester. Thank you very much. Kevin, you're up next.
He's coming up. Saw a great heath care facility. Kevin, man,
it's spectacular. We appreciate the tour today, Kevin. You're
up next.
STATEMENT OF KEVIN HOWLETT, COMMISSIONER, DISTRICT 1, MONTANA
DEPARTMENT OF TRANSPORTATION
Mr. Howlett. Thank you, Mr. Chairman. For the record, I'm
Kevin Howlett. I'm a Transportation Commissioner for the
Department of Transportation. I'm also the Director of Health
and Human Service for the Salish-Kootenai tribes.
Thank you, Mr. Chairman, for holding the the transportation
hearing today here in Indian country, Flathead reservation, my
home.
First, let me say that my testimony does not represent the
State of Montana, but reflects my service and observation as a
Native American who has the privilege of sitting with this
distinguished group of Montana citizens who represent the
entire state.
I was first appointed to the commission by Governor Judy
Martz and was subsequently reappointed by Governor Brian
Schweitzer. It has been a very challenging role, but one that I
feel a great sense of accomplishment and pride in the projects
that we've been able to do.
The issue of transportation in Indian country is one that I
have become increasingly observant. The specific needs that are
present, including isolation and financial resources all need
to begin to address the long overlooked infrastructure that has
and continues to add to the many social and economic issues
confronting tribal nations today.
The purpose of my presentation today is two-fold. I would
like to see the operations of the IRR Program be more
reflective of the needs on ground. Methods by which scarce
funds are distributed tend to ignore the needs of tribes who
are large land-based and favor former Indian country. The
reality is that most of the country was formally Indian
country.
As you are aware, tribal governments have very little
ability to generate resources to meet the needs. There are many
areas of our state that need repair and reconstruction. And the
resources, as well as we can plan, are insufficient to meet the
need. This is especially true for many Indian reservations that
are not part of the Interstate System, National Highway System
or State Secondary System.
In addition to roads, there are issues of bridges,
pedestrian walkways, et cetera. While I know very little about
the operation and infrastructure of the BIA Roads Program, I
can reflect upon a very concerted effort that I led as a
commissioner to work with the BIA on projects on the Cheyenne
Reservation. We and the Transportation Commission were able to
utilize an agreement with the BIA that would have allowed them
to use their force account equipment, et cetera, to complete
the project. They were not able to deliver the project, and the
state had to complete the project. This put a cold shoulder on
further discussions about agreements on Indian land between the
BIA and the state.
I would hope that the issue of Indian reservation roads is
further discussed and consideration be given to the formulation
of an infrastructure and necessary resources to accommodate and
utilize funds the state may have utilizing the reservation
workforce.
I would also like to recommend that the Bureau of Indian
Affairs create an entity that can provide Reservation Roads
Programs with the needed technical assistance to provide Indian
contractors the expertise, including financial bargaining to
compete for projects on the reservation, that they can within
the scope of their resource and capacity achieve.
The issue of financing could be expanded within the scope
of this technical review and structure. My concern is that
because the state has contracting law and regulations, there's
oftentimes no opportunity for local contractors or for that
matter tribes the ability to compete. It might also be worth
examining the potential for Legislative Land Reach, the new
transportation bill, that would provide a preference on federal
projects on Indian lands to tribes capable of competing on
construction jobs, again, within the scope of their capacity.
A final issue, I would like to ask for your support for
federal resources to complete the Highway 93 project on this
reservation.
Again, thank you for holding the hearing and for your
continued support for Indian country and the citizens of
Montana.
[The prepared statement of Mr. Howlett follows:]
Prepared Statement of Kevin Howlett, Commissioner, District 1, Montana
Department of Transportation
Senator Tester. Kevin, thank you for your testimony.
Scott Russell, part of the Crow Nation will be next. After
him will be Jay St. Goddard.
STATEMENT OF SCOTT RUSSELL, SECRETARY, CROW NATION
Mr. Russell. Thank you, Senator Tester. For the record my
name is Scott Russell, Secretary of the Crow Nation.
Once again, thank you, Senator, for holding the hearing
here. Also, we'd like to extend our gratitude to the Flathead
Nation for hosting this event and also for having the hearing
here.
Senator Tester, we do have written testimony that we've
given to your staff already. But just to highlight a little
bit. For the Crow reservation, at one time in the Fort Laramie
Treaty of 1851, the Crow reservation accomplished 38 million
acres. Since that time, it has dwindled down to 2.2 million
acres. In the 1920 Crow Allotment Act, our reservation now is
the highest fractionated reservation in the country. Ten
percent of the all fractionation--The problem with
fractionation is right here on the Crow reservation in Montana.
And we need technical assistance to help us deal with
right-of-way issues. We need technical assistance to help us
deal with some 200 landowners on one tract of land. And on our
Crow reservation we have 184 interstate highway miles. We also
have 3,500 miles of reservation roads.
Now, you know Montana weather. It does not compare with
southwest. It does not compare to anything in the south. We
need more money for maintenance. And some of these roads are
impassable during that time.
We had a premeeting prior to this hearing this morning, and
I was quick to add that this nation is at war in Iraq and
Afghanistan. And I was also proud to mention that per capita
Native Americans are the highest minority group that enlist in
times of war since World War I. We feel that we have given and
given and given way too much. And we do appreciate what we get,
but we have still kept giving. And yet we defend this country
proudly.
The United States Government has given billions upon
billions of dollars to rebuild a foreign country in Iraq and
Afghanistan. We feel that it's about time that the United
States Government rebuilt Native America. It's only right.
Any amount of money is good, but regardless, you start
putting dollar amounts, it's hard. Who's to say who gets more.
And it boils down to a divide and conquer theory, and it's not
right.
But we do thank you for being here.
Senator Tester. Thank you, Scott. We appreciate your
testimony.
Jay St. Goddard following. After Jay will be Jacque
Hostler.
Jay's part of the Blackfeet Tribal Council.
Jay.
STATEMENT OF JAY ST. GODDARD, BLACKFEET TRIBAL BUSINESS COUNCIL
Mr. St. Goddard. Thank you, Mr. Tester. For the record my
name's Jay St. Goddard, Blackfeet Tribal Business Council, Land
Chairman in our Resources and Roads Department.
Also I want to thank Mr. Echo Hawk for being here with his
staff. Once again, I think it's great that you come out to the
state of Montana to hold these kind of hearings. When you're
very sincere in your work, it shows the Montanans that you want
to get the job done.
As stated earlier, Mr. Echo Hawk does have a big bull by
the horns, but I've seen a John Deere tractor slow a bull down,
too.
But there was a lot of talk this morning, and I made a
comment in our session earlier about dollars. A lot of them to
me were millions of dollars being spent on federal, state and
county roads. But the need is still not being met in Indian
country. And safety is an issue. And the roads all need to be
rebuilt that were built in the 1970s.
Right now our roads are over 1,200 miles of BIA roads.
State roads run through our reservations as Mr. Smith has
stated. But off of those turns those other roads are BIA roads
and are in poor shape. To the west of us is Glacier National
Park. $20 million are being put into a road, and yet our needs
are still being underfunded each year.
You talk about the formula, Question 10. I've been to these
consultations. Everyone who went to those consultations, they
drove onto a nice interstate off of a nice state highway road.
Maybe one of these consultations needs to be held in Heart
Butte, Montana, where your car would fall apart on half of that
BIA road.
Anyway, I'd like to get to the point. And I'd like to point
out that the graphs that were shown by these gentlemen that
worked for the that seven to eight years--Mr. Rosette, John
Smith, Donny White from the Blackfeet--that they be listened
to. As you heard, they've been writing letters for years.
Tribal politics, councilmen like myself come and go, but these
gentlemen work diligently and hard. They got the statistics.
They know. And we can only bring this to you as tribal leaders.
These gentlemen need to be listened to by the Interior. These
people sitting right here.
Mr. LeRoy stated that things were going good. That's not
true. I wasn't happy with the consultation. I went to the one
in Billings.
Question 10 is being avoided. They don't know how to answer
it. The formula is so complex. Some of the people still don't
know how to figure it out today. And yet we're hurting for
dollars in Indian country.
Seventy-eight percent of the roads since 2004 and 2009 have
went to state and county roads, not BIA roads. So this formula
is not working. If they don't want to use Question-10, then we
should go back to the old way. There was no problems then.
And right now maintenance is hurting. We build roads in
Indian country, but there's no maintenance. You take the
dollars away from the maintenance workers.
Thank you and thank you for all your help and the other
three senators that help you.
Senator Tester. Thank you, Jay. Next up is Jacque Hostler.
Jacque will be followed by Pete Red Tomahawk. Jacque is a
representative of the Indian Reservation Roads Program from
California, so thanks for being here, Jacque.
STATEMENT OF JACQUE HOSTLER, CALIFORNIA PRIMARY REPRESENTATIVE;
VICE CHAIRPERSON, INDIAN
RESERVATION ROADS COORDINATING COMMITTEE
Ms. Hostler. Thank you very much. Distinguished Senator
Tester, honored witnesses, guests and staff, I would like to
thank Chairman Dorgan, Vice Chairman Barrasso, the Senate
Committee Leadership and express appreciation for the
successful work this year and major accomplishments on
transportation and other issues, as well as the Salish-Kootenai
tribe. Good afternoon. My name's Jacque Hostler. I'm the
California Primary Representative and the Vice Chairperson of
the Indian Reservation Roads Coordinating Committee. I am the
Chairperson of the North Coast Tribal Transportation Commission
and the Chief Executive Officer of the Trinidad Rancheria.
Today I bring you comments from the North Coast Tribal Transit
Association, which represents eight tribes. In addition, I'm
speaking on behalf of 110 California tribes.
As of 2005, California was the state with the largest
native America population according to the census, and we
received historically less than 2 percent of the IRR funding.
Historically California treaties were negotiated setting
aside 7.5 million acres of land for California tribes. These
treaties were never ratified with the state or the senate and
kept hidden until 1905.
During the termination era, 43 tribes were terminated in
California and lands were taken out of trusts and often lost.
Through litigation settlement and congressional action many
tribes have been restored, but the scars still remain and
continue to affect the ownership of tribal land.
Eventually many executive reservations and rancherias were
established in California, although they were much smaller than
the original treaty land. Because of this history, many lands
that were constructed by the tribes and the Bureau of Indian
Affairs were conveyed to state, county and local ownership.
I bring this to you to bring the other perspective. This is
why we have county and state roads on the Indian Reservation
Roads Program.
Today, history is repeating itself. Tribes do not have
ingress and egress to the reservations and rancherias. Palm
Springs is one example of stretching limits of the IRR program,
and there may be others in California as well as every region
in the nation. However, this perception is incorrect, and
California should not be judged as building roads to
Disneyland.
While there are a handful of urban tribes with large
casinos located on and near interstates, there are thousands of
tribal dirt and gravel and unimproved roads that provide access
to tribal reservations, villages and communities.
Many tribes in California are located in remote areas
without safe access to basic services such as health services,
emergency services, jobs and schools. People die because they
cannot get to medical services just as they do in every other
region. It does not matter who owns the right-of-way. What is
critical is that the ambulance can get through, that the school
bus can travel safely, that people can get to safety if their
land is consumed by wildfire, that the roads can support a
tribal economy on a reservation, and that tribal members can
get to jobs located off the reservation. SAFETEA-LU recognizes
this and funding was based on relative need.
You have my written comments. We do support the directive
the agencies are putting forward. The BIA and Federal Highways
are contracting with a private consultant to review the IRR
inventory and address roads that are incorrectly classified.
The process must be transparent and provide an opportunity for
tribes to be part of the process. We're pleased with the
agencies in trying to resolve it.
In closing, as I speak to you today, I am not only speaking
as a transportation leader, I'm speaking from the heart of our
people. I was born and raised in northern California. I went to
school on the Hoopa reservation. I married a Hoopa tribal
member. I have two tribal member children, four tribal member
grandchildren. Our tribal elders, our grandmothers are cultural
and spiritual leaders, and all of our tribal members depend on
roads to access, not only basic necessities, but also
spiritual, ceremonial and religious sites. We live in the
mountains, in the river valleys, in the deserts and on the
coast. We all ask you to visit California and see California
tribes and lands through our eyes.
Thank you again on behalf of California's Pacific Region,
110 tribes and tribal people. Thank you for your dedication.
[The prepared statement of Mr. Hostler follows:]
Prepared Statement of Jacque Hostler, California Primary
Representative; Vice Chairperson, Indian Reservation Roads Coordinating
Committee
Senator Tester. Thank you, Jacque. I appreciate you coming
all the way from California.
Next we have Pete Red Tomahawk from the Standing Rock Sioux
Tribe. Behind Pete will be Sampson Begay.
STATEMENT OF HON. PETE RED TOMAHAWK, DIRECTOR OF TRANSPORTATION
PLANNING AND DEVELOPMENT; GREAT PLAINS REGION PRIMARY MEMBER,
INDIAN RESERVATION ROADS PROGRAM COORDINATING COMMITTEE,
STANDING ROCK SIOUX TRIBE
Mr. Red Tomahawk. For the record, my name is Pete Red
Tomahawk. I am the Director of Transportation Planning and
Development, and also I'm the Great Plains Region Primary
Member on the Indian Reservation Roads Program Coordinating
Committee representing the 16 tribes in North Dakota, South
Dakota and Nebraska.
On behalf of the Standing Rock Sioux Tribe, I want to
express my appreciate to the Committee of Indian Affairs, to
you, Senator Tester, and to the retiring Committee Chairman,
Byron Dorgan for convening today's hearing concerning tribal
transportation. Thank you for your advocacy on behalf of the
Indian tribes.
With all of the problems facing our country today,
transportation needs have been overlooked. We are grateful that
you are taking a leadership role to address the most basic
protection that we can afford for our members today, safe
transportation through our lands.
Over the past five years, as a result of significant
increases, Congress--through Indian Reservation Roads Program,
tribes have achieved many successes and improved transportation
infrastructure throughout our communities and helped educate
our members about road safety.
Infusion of the American Recovery and Reinvestment Act and
stimulus funds put our members to work and accelerated roads
reservation improvements. Funds Congress had provided to tribes
have saved lives and made a change for the betterment of our
communities. Our tribe is doing our part to make road safety
our number one priority along with the Federal Highway
Administration.
For the record, Mr. Chairman, I did leave a copy with your
staff, you know, on our testimony. But what we would ask for
is, you know, for the past two winters, we had back-to-back
disasters. We had some severe winters. So what we've asked is
to look at the road maintenance issue. The number one issue is
to look at Congress--looking your direction to champion through
the highway trust funds. $100 billion in looking at this issue
of road maintenance. We need your help in this area. And with
that, you know, for the record, you have my testimony.
Senator Tester. Thank you, Pete.
And for everybody else, if you have written documents, it
will be part of the record if you turn it into us.
Pete Red Tomahawk. Thank you very much. Appreciate you
coming.
Sampson Begay, and after Sampson it will be Richard Palmer.
Sampson.
STATEMENT OF SAMPSON BEGAY, CHAIRMAN,
TRANSPORTATION AND COMMUNITY DEVELOPMENT
COMMITTEE, NAVAJO NATION
Mr. Begay. Thank you, Senator and members of the Committee.
My name is Sampson Begay. Please accept these comments on
behalf of the Navajo Nations from the state of Arizona and in
support of today's testimony by John Smith, the Transportation
Director for the Shoshone Arapaho tribe. I am also Chairman of
the Transportation and Community Development Committee of the
Navajo Nation. I am also a member of the Indian Reservation
Roads Program Coordinating Committee. I joined Mr. Smith in the
stages of the Navajo Nation disagreement with and opposition to
the Bureau of Indian Affairs and Federal Highway Administration
new interpretive policy on Question 10 in which they seek to
justify the expenditure of scarce indian reservation roads and
state and county roads.
On February 4 and 5, 2009, in Denver, Colorado, the Navajo
Nation hosted a meeting attended by leaders from eleven small
rural tribes whose exterior boundaries encompass an excess of
30,000 square miles. These were and are the tribes for which we
believe the Indian Reservation Roads Program was created.
Tribes whose locations are so remote that they cannot rely on
state and county transportation infrastructure.
Yet, it was these very same tribes who by 2009 had lost the
most under the BIA and the Federal Highway Administration's
implementation of the 2004 program regulations. The funds
allocated to the land-based tribes loss were from 76 percent in
2004 to 28 percent in 2008. Because of these staggering drops
in funding to rural tribes, was a staggering increase in the
miles of state and county roads allowed into the Indian
Reservation Roads Program inventory.
From 2005 to 2007, the miles of the State Interior and
miles of Tribal and BIA roads increased from 30,000 to 39,000.
Clearly the BIA and the Federal Highway Administration were
improperly using scarce Indian Reservation Road monies as a
second source of funding for roads improperly using scarce
monies that should have been used for reservation roads.
At the meeting in Denver, the land-based and small tribes
agreed----
Senator Tester. Sampson, I've got four or five more folks
who want to speak, and we're going to run out of time, so I'll
ask you to wrap up. Your full written testimony that you turned
in will be a part of the record, so----
Mr. Begay. That being the case, I also have a written
comment, so I will turn it in. I thank you very much.
[The prepared statement of Mr. Begay follows:]
Prepared Statement of Sampson Begay, Chairman, Transportation and
Community Development Committee, Navajo Nation
Senator Tester. No, I want to thank you very much for
coming up. I appreciate it very much. Thank you for your
testimony.
Richard Palmer is next. Richard, before you get up, I just
ask that you be concise or we're going to run out of time, as
much as possible. I should have cut the other ones off earlier,
I guess. But be as concise as possible.
After Richard Palmer will be Harvey Spoonhunter.
So go ahead, Richard.
STATEMENT OF RICHARD PALMER, WHITE MOUNTAIN APACHE TRIBE
Mr. Palmer. Thank you, sir. My name is Richard Palmer. I'm
from the White Mountain Apache Tribe from Arizona.
I've been involved in transportation for a long time. I
know most of the members in here. Served with them. Sat with
them. Laughed with them. And we all have the same problem. We
need more money. My reservation is 1.6 million acres. We are a
large land-based tribe. We are from Arizona, northeastern
Arizona. And we suffer the same problems everybody else here
does. We need money. We need interpretations of the Q-10. We
need to look at reauthorization. A whole lot of this stuff is
not just talk. We need to see action.
Thank you very much.
Senator Tester. Thank you. Thank you for being concise,
too, Richard. Thank you very much.
Next is Harvey Spoonhunter followed by Rick Kirn.
Harvey, you're up.
STATEMENT OF HON. HARVEY SPOONHUNTER, CHAIRMAN, WIND RIVER
INDIAN RESERVATION
Mr. Spoonhunter. Thank you, Senator. I'd also like to also
thank Assistant Secretary Larry Echo Hawk and his staff. And I
had the privilege of meeting with them at these consultations
meetings. I appreciate the candor of the discussions and their
view on all these complex issues.
Mine is more of a comment, as John Smith has submitted our
testimony and the panel, too.
For the record, my name's Chairman Harvey Spoonhunter from
the Wind River Indian Reservation.
And I'd just like to comment that before we can go forward
on this road on resolve, we need to look at the past. When I
say we need to look at the past, on April 29th, 1994, the
Clinton Administration, we had the same memorandum where all
federal agencies consulted with tribes. So we cannot wait any
longer. We need to address these issues. I think we're at a
crossroads now. We had the opportunity to. Tribes are united
together. And I would like to commend the President for setting
up these consultation meetings so that we can have a voice in
resolving a lot of these issues.
Senator Tester. Thank you. I Appreciate it. Thank you very
much.
Next is Mr. Kirn followed by Wilford.
STATEMENT OF RICK KIRN, MEMBER, FORT PECK
ASSINIBOINE AND SIOUX TRIBE; MEMBER, FORT PECK
TRIBAL COUNCIL
Mr. Kirn. Good afternoon, Senator Tester.
For the record, my name is Rick Kirn. I'm a member of the
Fort Peck Assiniboine and Sioux Tribe. I'm also a member of the
Fort Peck Tribal Council.
And I'll be brief, Senator Tester. I think I can't add too
much to what people have said about the importance of tribal
transportation.
But do want to thank you for what you've done in
Washington, D.C. We want you there and we need you there, but
it's also nice to have you home. I've been to several listening
sessions you've had, and I know that you don't only listen, but
you also hear what people are trying to say. I want to thank
you for that.
And I think the main thing I wanted to talk about was the
importance of the tribal transportation system. I think
everybody here know what's happening in western North Dakota
and also southeastern Montana. It's what they call Rockin' the
Bakken. And it's one of the biggest in the country right now,
and it's heading for Fort Peck. And I can't stress the
importance of transportation in great economic development to
our reservation, and actually to all of northeastern Montana.
Fort Peck Reservation has four counties that we basically
support up there as a reservation. Anything that happens with
our transportation system has benefited all of northeastern
Montana.
And again, I just want to thank you for being here and
listening to us.
Senator Tester. Thank you, Rick. I appreciate you being
here, too. Wilford, you're up next.
STATEMENT OF HON. WILFORD WHATONAME, SR., CHAIRMAN, HUALAPAI
TRIBE
Mr. Whatoname. Senator Tester, we want to thank you. I am
Wilford Whatoname from the Hualapai Tribe out in Arizona.
The day before we celebrated the Hoover Dam overpass that
was constructed and built and now the public can travel over
the Hoover Dam. Anyway, I was there yesterday and so was Mr.
Tester, yes, and I want to say that we want to thank you,
Senator Tester, for convening this meeting today, since
Chairman Dorgan has been retired. And I want to thank you for
your advocacy on behalf of many tribes.
With all of the others problem with our country today,
reservation needs seem to be overlooked. We are grateful that
you have taken a leadership role to address the most basic
protection that can afford our members today and safe
transportation through lands.
I have a book here. And one is a letter that was sent
September 22, 2010. And also Inner-Tribal Council of the
Arizona Resolution, 1710, addressing the methodology for the
distribution of funding questioning Question 10. Also
Resolution No. 1710, also in support of the distribution of
funding.
And also I have here a testimony of the Hualapai Tribe,
July 12, 2007. Which was done by Erin Forrest, 2007, and he is
a director for the Hualapai Tribe on transportation. And he was
a member of the committee that was working on the new TRIP Act
that we had, and he finally said, I can't get them to all agree
on one thing, you know, all tribes are not agreeing, so
therefore, he resigned from that committee.
And, sir, I want to thank him and the other tribal members
that were on that committee. And I just want to hand this in to
you today. And hopefully we can get something done.
Today the biggest thing that seems to bother very tribe is
Question 10. It affects us and impacts us as well.
Thank you for your time.
[The prepared statement of Mr. Whatoname follows:]
Prepared Statement of Hon. Wilford Whatoname, Sr., Chairman, Hualapai
Tribe
Senator Tester. Thank you, Wilford, for being here.
I think it's about time to wrap this up. We had a good
hearing. And I want to thank you everybody for traveling, some
of you very long distances, here to the Flathead Valley for
today's hearing. I very much appreciate that. And I want to
thank you for sharing your thoughts. And it's good to hear
about how the Recovery Act has created jobs and improved
transportation infrastructure throughout Indian country. And I
appreciate the work you've done to find common ground on the Q-
10 issue.
It's reassuring to hear that tribal leaders and
administration officials are committed to working together
closely. As we craft the next highway bill, it is critically
important. And I appreciate your ideas. I appreciate the
constructive thoughts that were offered. But it's more
important to know we don't want the dialogue to end here. As we
approach time to reauthorize the highway bill, we need to make
sure Indian country is included in that process from the very
beginning.
Committee staff and my staff will be here for the next hour
or so to keep today's conversation open. And it's important to
know that this hearing will remain open for written testimony
for two weeks, until October 29th. In case you have other folks
out there that want to get their testimony in, there's some
time to do that. So please keep in touch with the
administration and individual advocates on your particular
priorities. We'll keep the Committee's official hearing record
open, as I said, for two weeks.
We saw here today that transportation is vital in Indian
country. Whether it's a fire truck trying to reach a rancher, a
single lane road covered with ice or snow, or someone trying to
navigate 12 miles of 12 lanes of gridlock in southern
California. Each tribe has its unique challenges, and we need
to keep all of those challenges in mind. Rather than fighting
against each other, I challenge everybody, as always, to work
together. We're fighting wars in the Middle East, we have
troops deployed worldwide to keep our enemies at bay, so it's
essentially critical that we treat our neighbors as neighbors
and not as enemies.
We have a lot in common, including our community
challenges, whether it's tribes working with cities and
counties to improve access or rural tribes working with urban
tribes to protect all our members. Working together on these
issues is absolutely critical. We need to keep talking
together. We need to keep working these issues out with one
another. We need to keep defining our priorities together,
building alliances.
By working together, we will improve tribal transportation.
By improving tribal transportation, we will create jobs, we
will make communities safer, and we will rebuild our public
infrastructure.
I want to thank you, again, all for being here. And I also
want to thank Vice Chair, Senator John Barrasso, my friend out
of Wyoming, for his contribution to this Committee. But it is
of particular significance for me to point out somebody who we
all know sitting in this room who has been a great leader for
Indian country over all the time I've been in the U.S. Senate,
which hasn't been that long, but many years before that.
Chairman Dorgan is going to be retiring from this Committee as
Chairman of it. He has done nothing short of an incredible job
addressing the issues in Indian country. If you take a look at
what's transpired in the last two years on this Committee under
the leadership of Byron Dorgan, it has been absolutely
incredible. So when you see him, if appropriate, give him a
kiss.
I want to thank you all for being at this Senate Committee
on Indian Affairs Hearing, and we are now adjourned.
[Whereupon, at 4:10 p.m., the proceedings were in recess
and subsequently reconvened at 4:23 p.m., and the following
proceedings were entered for the record:]
LISTENING SESSION
STATEMENT OF ALLISON BINNEY, MAJORITY STAFF
DIRECTOR/CHIEF COUNSEL, SENATE COMMITTEE ON
INDIAN AFFAIRS
Ms. Binney. I'd like to ask everybody to take their seats,
please.
So for everyone that's still here, I wanted to make sure
that you knew that we're going to keep the hearing record open
until the end of the month. And so if anyone wants to submit
written comments or written testimony to be a part of the
hearing record, you have until the end of the month to get that
to the Committee. I would fax it to us or e-mail us, and we'll
make sure it's part of the record. It can be any length and it
can include charts, anything like that. So feel free to do
that.
Senator Tester had to leave, and he wanted to make sure if
there were any people who wanted to continue to get comments on
the record today, that we had a listening session afterwards.
So I know there's only a few people here, but if any of you did
want to go ahead and provide more oral comments, please go
ahead and do those. We have our court reporter over here who is
going to go ahead and keep track of the comments so they can
become part of the official record. My name's Allison Binney,
by the way. I'm the Staff Director of the Senate Committee on
Indian Affairs underneath Senator Byron Dorgan. This is Denise
Desiderio. She's our Senior Counsel for Chairman Byron Dorgan.
And then Jim Hall, over here in the red tie, he is Counsel for
Vice Chairman Barrasso from Wyoming. He's the Vice Chairman of
the Committee.
And so with that, I don't know if anybody here wants to
provide any oral comments, but let me go ahead and open up the
microphones. I'm going to ask that people use the microphone
here in the middle. And I know it's not there, because it's
right over here.
Is there anybody who would like to provide any oral
comments for the record? Anyone?
Well, Chairman, we know you always have lots of comments.
And then, Chairman, did you hear when I said that we're going
to leave the hearing record open until the end of the month?
Mr. Whatoname. Yes.
Ms. Binney. Did you provide us any written testimony today?
Mr. Whatoname. Yes. I gave you some, but I think we did it
more hurriedly because when the notice came out that you were
going to have this field hearing, about just a few days ago,
and then they had the Window Rock hearing out there, and I
missed that one, so we decided to come up here. So we gave you
some information there, but that was on Question 10 and also in
support of the new TRIP Act, what they're recommending in that.
Ms. Binney. Well, we'll keep these, and then if you want to
provide additional written testimony or revamp the whole
thing----
Mr. Whatoname. Yes. It was just more hurriedly thrown
together, just kind of a mishmash of stuff. It does include the
Intertribal Council's Resolution. They didn't authorize me to
do that, but, you know, I just thought I'd do that for them as
well. But I did talk to Esther Corbett, she's the Arizona
person on that committee on transportation that represents the
tribes in the Western Region.
So anyway, we'll do that when we get back. And we do want
to thank you for taking your time to come up here and meeting
with us again, and Senator Tester being able to sit down and
listen to us. Besides, getting all the BIA, Department of the
Interior, that's great. You know, that's that the other
Montana-Wyoming tribes have to get to do. I know it's with
them, but I felt that we should come up and also address our
concerns. It's very important that we do that. We do have,
basically, the same issues, funding.
So again, we just want to thank you. And whatever you can
do on our behalf. I do want to thank Denise and the others on
the Committee on the juvenile detention facility that was built
in 2007. It's fully staffed now with 30-some staff people, and
it's up and running. We were sitting there empty for almost a
year, but now it's running and it's working. So we want to
thank you for that.
Ms. Binney. Good. That's great. One of your tribal judges,
Joseph Flies-Away, testified on that. I think he submitted some
written testimony looking into the fact that it was sitting
there empty for so long. So I'm glad to hear that.
Mr. Whatoname. Yes. We just recently got some funding for
the Green Entry Program where the juveniles are being taught
gardening and farming. They do grow produce, lettuce, tomatoes
and stuff. They're kind of feeding the staff and themselves.
They call it Green Entry Program for DOJ. So that's working for
them.
I want to thank you again for coming here and working with
us. I appreciate that.
Ms. Binney. Thank you, Chairman.
Did anyone else want to provide any additional oral
comments? Pete Red Tomahawk.
Mr. Red Tomahawk. Yes. The areas that I didn't read for the
record is the written testimony from Standing Rock Sioux Tribe.
In looking at the advocacy for increase of annual probation for
the IRR program to 800 million annually with step increases of
50 million, we're likely to grow the IRR Program to just over
one million at the end of the next reauthorization.
And also to highlight the area of safety. And we need to
lower the numbers. I'm presently a member of the FHWA Safety
Committee and looking at the tribes' use throughout Indian
country and looking at the educational component and doing the
Tribal Safety Summits throughout the country. We just did one
here in Oklahoma. We're going to be doing one here next week in
the state of South Dakota at the Lower Brule Sioux Tribe on the
26th and 27th, and looking at that.
I shared with John Baxter. And Mr. Baxter is going to be
present at the Safety Summit. And I shared the comments with
the Montana MHWA Division administrators. And looking towards
Montana and Wyoming having a Tribal Safety Summit also. So in
looking in that direction, overall we've come back to national
reports, and looking at lowering the numbers and lowering--At
the present time, even looking at the national decrease in the
numbers, still for Indian Country the numbers, they're still
starting to--So looking at that issue, we advocate for two
various safety--one though FHWA. And looking at these hearing
components, we have a lot of roads that need new engineering
component and looking at the slopes of these highways that we
travel on a daily basis. So hopefully with looking at those
corrections that can be done, we're able to make the, you know,
increases and also these decreases of these things that are
taking place.
So the other area was enforcement. Looking at engineering,
enforcement, education and EMS, emergency medical services. So
in looking at the engineering, education, enforcement, we
presently have a surge that's going on at Standing Rock. And
it's working very well, looking at the amount of law
enforcement officers being able to go to all communities. Yet,
more importantly, looking at the deterrence towards these five
issues that possibly couldn't have happened without them being
there and actually happening. So in looking at that, it is
working.
And then the EMS, and looking at the emergency medical
services. You know, from the rural side, there's no such thing
as the golden hour. In looking at these crashes that happen
that, you know, to the nearest trauma center, it's some
distance away from these scenes that happen in Indian country.
So looking at these issues, I share with you the advocacy
of trying to get more funding to these areas. So with that, I
want to thank you for allowing me to make additional comments
and also to share the written testimony. I shared that with
you, Denise.
Also we wanted to share our congratulations to Senator
Dorgan, looking at the excellent job that he's done throughout
the years. It's very sad for us to see him go and wanting him
to stay on, but Senator, even when he came to Standing Rock in
June or July, you know, tribe was very honored for him to come
and make that visit. But more importantly, congratulate him for
the excellent work that he's done, not only for the tribe, but
all of Indian country across the country.
So with that, I want to thank you for taking time out of
your schedule to be here with us. Thank you very much.
Ms. Binney. Thank you. Would anyone else like to provide
any additional oral comments?
STATEMENT OF SHIRLEY KNAUS, VICE CHAIRPERSON, TRINIDAD
RANCHERIA
Ms. Knaus. Hi. My name is Shirley Knaus. I am the Vice
Chairperson at Trinidad Rancheria in northern California.
And I've testified before other hearings for transportation
in the past couple of years. And I just wanted to say once
again that we need to work together and not pit tribe against
tribe, find that fair and equitable solution like everybody is
saying, and not to lose sight of the commonalities and the
common meanings that all the tribes have, and to sort out the
extreme examples on both positions, no matter what stand a
region has. Look at what a viable solution would be, and also
what the law and the regulation states, and not leave it to be
one or two persons' interpretation of--for instance, a BIA
employee making an interpretation. Because that's one theme I
heard throughout all these different hearings, is that the BIA
differs from region to region and they interpret it
differently. So the consultant and the analysis and just
restructuring possibly within the BIA to make it more
consistent, then we might not have as many different problems
if each region was applying the regulation in a consistent
manner.
So I would just like to see that consultations continue,
the town halls and the hearings and that whole process continue
for tribes to get engaged and to help work in the manner that
everybody talks about. And I would hope that everyone, the
tribes and the administration, take that to heart and really be
collaborative, not just when they're making their speeches. But
if we really work together, I think we can come up with a good
solution that meets the needs of tribal people, because that's
all the same no matter where you go.
Thank you.
Ms. Binney. Thank you. Would anyone else like to provide
some comments.
STATEMENT OF TIM PENNEY, TRIBAL TRANSPORTATION
COORDINATOR, FEDERAL HIGHWAY ADMINISTRATION,
OFFICE OF POLICY
Mr. Penney. Yes. If I could make a couple comments to
possibly for you and maybe to make it back to other members and
staff and the Committee.
My name's Tim Penney. I'm the Tribal Transportation
Coordinator for Federal Highway Administration in the Office of
Policy.
You know, one thing that's really been focussed on here
today and in a lot of these consultation sessions and different
hearings that have been held, there's a real focus on the
Indian Reservation Roads Program, and I think rightly so,
because that is the dedicated source of funding. But what gets
a little bit lost in that is all the other areas in which
tribal governments are working in transportation and all the
other needs that are out there in tribal transportation that go
beyond IRR Program funding.
And I wanted to touch on just a few of them to point them
out that some of the activities that are happening and some of
the needs that remain out there among tribal governments and
transportation. Let me start with one. One of the items that
we've worked on a lot in Federal Highways with tribes and with
state DOTs is looking at state and tribal intergovernmental
relations. How can we get tribes and states to better work
together? Looking at cooperative projects. Looking at technical
assistance and training. And really looking at building
expertise of tribes. And that's sort of a theme that we've
continued to push. And that's a desire that we've heard from
tribes in wanting to build their own programs, sort of grow
their own staff, take on as much of the program as they can,
and not continue their dependence on the BIA to run the
programs.
And there's tribes all over the country that are at various
stages of that. Some that are almost running complete
transportation programs. Some that are taking it piece by
piece, maybe just doing planning, maybe just doing the
construction. But that's a common theme among tribes, of
wanting to take over more of those programs.
There is no actual sort of mandate to do that or dedicated
funds to do that, but that's something we built into our
program at the Federal Highways. We see that as a tremendous
need. And from our administrator on down to really make that
part of our mission, and not just an extra, not having working
with tribes, just an extra piece. So when we talk about our
primary mission on the federal aid side is working with states,
but we also include tribal governments as part of that. So that
would be one area.
Another area--what I kind of mentioned--sort of jumping
from the state/tribal intergovernmental relation to building
capacity. You know, the main reason I want to look at that, is
looking at that for the tribes and from the tribes, not just
for them, but to sort of really support self-determination in
transportation. They're really taking that on. If we can look
at aspects of transportation with tribes, that's going to
support self-determination and self-governments.
this concept has been bounced around for 30-plus years. We
talk about it a lot. We hear about it a lot. They talk about
sovereignty and self-determination, but when it gets down to
it, there's got to be some push from their end to take over
these programs and the ability from the Federal Government-side
in the programs to support that. And I think those two pieces
have to meet.
One of the other areas that I want to talk about, and this
has come up because at one point in Federal Highways, we did
have a little dedicated money for research funding. When people
think of research, they think of some of the hard engineering
research and crash testing and some of the things we've done in
Federal Highways. But there's a real need for a dedicated
research program within Tribal Transportation. There's a whole
range of topics, from policy topics to technical topics. And
especially now, as tribes are getting into building their own
equipment and running their own programs. What does that mean
and how does that work? There's funding out there, but again,
it's always directed towards state DOTs or universities or
transportation research boards or things like that. But there's
no dedicated, sort of, line item for tribal transportation
programs. And there's a tremendous need out there. We've been
lucky to do a few things over the years, but it's really
scraping and stealing from other pieces of programs to convince
the folks in safety to do a safety research project on tribes.
We've been able to convince some people in planning to do some
tribal planning. But we aren't able to just, from my office,
identify a problem statement and go after it. It takes a lot of
work of pulling in other staff and, you know, to convince them
to convince their superiors that this is really something
worthy to fund, something they don't have to do within their
own program. If it's a safety program or an infrastructure
program, they think something's worth funding, they go after
it. Within the tribal program, if we think something's worth
funding, we have to convince a lot of people to tap into their
resources, be it dollars or people, the expertise here.
Really those are some of the program areas. You know, one
of the things I wanted to say also is within Federal Highways,
again, you heard a lot about the IRR and continue to hear about
that.
But I just want to say one of the things we've been trying
to push is some of the themes within Federal Highways and when
do we want to do the tribal transportation, not next year, not
the next legislative cycle, but where are we looking? Ten,
twenty years down the line? And this is really not just from
Federal Highways, but based on some of the input and
observations we have from the tribes that we've been working
with and being able to get out around the country. But I think
we really want to see, sort of, national support and self-
determination, tribal self-determination in transportation, is
gonna really push that for tribes within the program
development of the transportation program.
The next piece is fulfilling that capacity and expertise
where they can take on programs, where they're able to talk to
state DOTs at the same level, have the same technical skills as
all those transportation practitioners and understand the
regulation side and the technical side of the program. And
finally, in doing that, I think we'll finally see the
improvement in transportation systems and highway safety out
there among reservations and tribal communities.
So those are kind of the themes, I think, we're trying to
build on internally at Federal Highways, and I know that goes
beyond a lot of IRR Program. Again, I know when you look at
$450 million, it looks big, and that becomes a topic of
discussion. I think there's a lot of other things that don't
have large dollar amounts attached to them. Sometimes it's an
idea rather than a dollar amount, and we have to push those
ideas and concepts out among our divisions and state DOTs and
tribal governments to accomplish some of theses things.
So with that, I thank you for being out here and having
this today. Thanks.
Ms. Binney. I actually have a question. You had mentioned
that, you know, there's a movement with some tribes toward
starting up their own department of transportations.
Mr. Penney. Right.
Ms. Binney. Do you have any good examples where tribes have
actually developed full department of transportations up and
running?
Mr. Penney. I don't know if I can say there's anybody that
has a full department of transportation. Cherokee in Oklahoma
has a lot of their work inhouse. They do design work. They do
materials testing. I think they do some of their planning.
And Navajo has a big program, even though technically
they're considered a direct service tribe. They've got over 120
people on staff within Navajo DOT. So they're building the
planning side and technical side. So they're doing a lot of
their work, doing a lot more maintenance, buying the equipment
they need to take on some of these tasks.
There's others that are sort of getting the piece work. For
a while at Oglala Sioux at Pine Ridge, they were starting to
build a department where they looked at, you know, what were
their needs. They had a safety program. They had a maintenance
group. They had a construction group.
So I don't know if there's anyone that can really say from
start to finish has done this. I'd like to hold up examples and
say, here's the ten that we have right there. There's some that
are getting there. There's some that are close. There's some
that maybe say that they're there. I think it's a work in
progress for the tribes. And that's something I think we need
to focus on with those tribes that are doing it. Get some peer-
to-peer exchange on how they did it. Because there's a lot of
considerations, not just getting program funding, political
considerations of going through tribal chairmen saying, we need
ten people, twenty people to run this program, and we've got
salaries that are going to eat up this much. And how you go
about that. What are the technical considerations? What are the
job requirements for the people that you're bring on? How does
that fit with the existing tribal government structure?
So I think from the tribes that are doing that--and what
we've tried to do is bring some of them together, to say, How
did you do that? What were the consideration to sustain this?
You know, might be, you can do this for one year, two years,
but five, ten, twenty years down the line, are you still going
to have a tribal DOT out there?
Mr. Hall. One of the big things you said--I'm just kind of
building on what Allison said, but, you know, within tribal
capacity and what you were discussing in terms of building
transportation departments. There's been a lot of folks in the
United States Senate that have been interested in that. You
kind of already kicked out a couple of examples, but do you
have any other examples of what we could do legislatively to
take a look legislatively that would help build capacity for
tribal transportation departments?
Mr. Penney. Well, you know, one thing we bounced around
last go-round for SAFETEA-LU internally, and it got folded into
another program and sort of disappeared. We talked about having
a tribal capacity building program, and it got folded into this
planning capacity building program that became a very generic
thing. But I think something like that where we're looking at--
I mean, that's a big thing for a lot of the tribes, how do you
start that program? If you now have the capability to do a 638
Program, you know, where there is no start-up money, unless the
tribes are putting in some other source of funds. And some
tribes are. Some tribes are putting in tribal gas tax money or
casino revenues or other tribal revenues. Jacque is over there.
Up at Hoopa they had the gravel operation. Some of that went
back into transportation. So, you know, people are building
programs in those ways. But I think if there was a program
where we could identify the tribes or really self-identify
tribes and propose a plan on what they're trying to build to
help with that sort of start-up cost where they can get into
the same things that state DOTs do.
I worked for a state DOT when I first started my career,
and that was a thing every day, you wanted a project to charge
to, something to charge your costs to every day. And tribes
don't have that ability right now, and that's where they're
stuck. They're not able to charge their planning costs or
design costs or construction costs to something. And I think
that's the idea to get them up to speed with the rest of the
transportation profession, how things are done industry-wide,
and not have, well, here's how states and counties do it, and
tribes are a little bit different. I mean, we should have a
program that's kind of seamless, even through there are vast
differences on how things operate on the reservation. But I
think in structuring a program, there's some good lessons out
there on how things have been done from a lot of different
sizes we're looking at for tribes. Anything from a small roads
department to a public works department to a full blown DOT-
size operation. And, you know, tribes are going to fit into
many of those models that are out there.
Ms. Binney. Thank you.
Mr. Penney. Thanks.
Ms. Hostler. For the record, I'm Jacque Hostler. I'll just
go with Trinidad Rancheria for now.
You know, Tim brings up a lot of good points. You guys are
asking some questions. Grassroots on the ground in Indian
country, there are so many disconnects. There's a disconnect
between the chairman and the tribal council to the staff and
understanding SAFETEA-LU and understanding 25 CFR Part 170. It
was said over and over today, it's extremely complex.
I've been working in it since February of 2005. This is
October of 2011. And I consider myself literate in the
inventory in the system. The disconnect also--because the
tribal chairmen and the tribal counsel don't understand what
the staff understands. But then also our system is totally
different than Federal Highways, state DOTs, than the counties,
than the local governments. So we are like a six-category, and
none of those categories totally interconnect.
So we in northern California created the North Coast Tribal
Transportation Commission to try and share our knowledge. And
as Tim mentioned, I went to work for Hoopa in 2002 as their
aggregates and ready-mix manager. And in that time I brought my
private enterprise experience, and I taught them how to build
capacity. We built an aggregate crushing plant. We came up with
spec material. We delivered spec ready-mix. We went out and we
used the new construction money that came through the IRR
allocation to build projects. We supplied those projects with
our own aggregates, our own ready-mix, and our own workers. If
it needed to be bid out, then it was bid out, but our
equipment, our men, our materials were put to work. It was an
exemplary. And we were teaching the other tribes how to do that
in northern California.
We ended up with two counties, Humboldt and Del Norte
County, and over 11 tribes participating in this consortia and
beginning to understand and learn about 25 CFR Part 170 and how
to update the inventory and how to section-by-section get your
roads in.
And our biggest disconnect was with the regional engineer
and his not understanding 25 CFR, but then also with all of the
other agencies within our county, within our state and
nationally. Because it felt like we were fish out of water. It
felt like we were the different ones, and nobody really
understood what we had to go through in our county.
So the first step was to build the North Coast Tribal
Transportation Commission. The next step was to become part of
the Regional Planning Authority, which in Humboldt County was
Humboldt County Association of Governments. So within three
years, we had five tribes sitting on that technical advisory
committee, because money was coming in through that regional
planning agency for tribes. We were part of the county, but we
were never getting that money. They counted our populations.
The tribal chairmen are at home slamming our fists on the table
saying, the county doesn't do anything on the reservations, and
they're right, they don't. Because the county cannot provide
services for the rest of the county, and reservations are the
last on the list.
So as we became part of that association of governments,
that regional planning authority, we were able to learn their
system. We were able to say, wait a minute, this a county road.
We have a project ready to go, and you need to give us money
for this project. Slowly but surely over the past five or six
years, we've gotten projects on that State Transportation
Improvement Plan. Because we started really small, and we began
developing that. You know, those baby steps of learning the
system.
Then we took it to Caltrans. The Native American Advisory
Committee meets statewide southern California, northern
California, central California. We began sharing this knowledge
with them on how we were doing things in northern California.
And I would say, over the last seven years, we've built a lot
of our social networking has really, really improved. And we
have a direct line now to the director at Caltrans.
We agree the states and the counties need to step up and do
what they need to do. California's in a budget crisis. There's
all of these issues. So how do we become part of the solution?
How do we leverage funds with the other funds that are
available? Those are the things we are teaching the tribes in
northern California.
And you can go in and build a transportation department. I
love doing that. That's easy. The hard part is understanding
the system, getting those systems to all coexist and not having
the systems say, well, I can't help you with that.
So then we wind up at the Indian Roads Coordinating
Committee. And the regions that have lost their lands and have
county and state roads bisecting traditional lands, it's not
our fault that that happened. We still have to deliver services
to Indian country. So they don't understand our situation. As
we go and visit their regions, we understand their situation.
They need to come and understand our situation.
And one of the reasons that it's difficult to speak, is my
husband's been over twenty years building that relationship in
Hoopa. And, you know, it takes a long time to move forward
before a tribe. They don't want to give up that sovereignty,
that self sufficiency, that self determination, and go over to
the county and the state and say, you know, we're a sovereign
nation and in California not be recognized. There's so many
issues.
So, you know, we won't go away. We keep showing up, you
know, we keep being the underdog, but that's okay, because
we're educating people.
Ms. Binney. Thank you, Jacque. I just want to thank
everyone for being here. Again, the oral comments that were
just made now are going to be part of the hearing record. But
the hearing record will stay open until the end of the month,
so if you want to provide written testimony, get that to the
committee by the end of the month, and we'll include that as
part of the hearing record as well.
And with that, thank you for being here. It was a great
hearing. Thanks.
[End of proceedings.]
A P P E N D I X
Prepared Statement of Hon. Cedric Black Eagle, Chairman, Apsaalooke
(Crow) Nation
______
Prepared Statement of Hon. Charles W. Murphy, Chairman, Standing Rock
Sioux Tribe
______
Prepared Statement of the North Coast Tribal Chairmen's Association
(NCTCA)
______
Prepared Statement of Hon. Timothy P. Hinton, Sr., Vice Chairman, White
Mountain Apache Tribe
______
Prepared Statement of Tracy ``Ching'' King, President, Fort Belknap
Indian Community Council