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S. HRG. 110–251

TRANSPORTATION ISSUES IN INDIAN COUNTRY

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 12, 2007

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

LISA MURKOWSKI, Alaska, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

CLAIRE MCCASKILL, Missouri 

JON TESTER, Montana 

JOHN MCCAIN, Arizona 

TOM COBURN, M.D., Oklahoma 

JOHN BARRASSO, Wyoming 

PETE V. DOMENICI, New Mexico 

GORDON H. SMITH, Oregon 

RICHARD BURR, North Carolina 

SARA G. GARLAND, Majority Staff Director 

DAVID A. MULLON JR. Minority Staff Director 

(III)

C O N T E N T S 

Page 

Hearing held on July 12, 2007 ............................................................................... 1

Statement of Senator Dorgan ................................................................................. 1 

Statement of Senator Murkowski ........................................................................... 16

Prepared statement .......................................................................................... 17

Statement of Senator Tester ................................................................................... 6 

WITNESSES

Baxter, John R., Associate Administrator for Federal Lands Highways, Federal Highway Administration, Department of Transportation ........................ 10

Prepared statement .......................................................................................... 12

Forrest, Erin, Director of Public Works, Hualapai Nation ................................... 64

Prepared statement .......................................................................................... 66

Garrigan, James, Transportation Planner, Red Lake Band of Chippewa Indians ......................................................................................................................... 56

Prepared statement .......................................................................................... 59

Gidner, Jerry, Assistant Secretary-Designate; Deputy Bureau Director, Office 

of Indian Services, Bureau of Indian Affairs, Department of the Interior; 

accompanied by Leroy Gishi, Division Chief, Division of Transportation ....... 7

Prepared statement .......................................................................................... 8

Kashevaroff, Don, President, Seldovia Village Tribe ............................................ 27

Prepared statement .......................................................................................... 30

Red Tomahawk, Pete, Transportation Director, Standing Rock Sioux Tribe; 

Chairman, Indian Reservation Roads Program Coordinating Committee ...... 35

Prepared statement with attachments ........................................................... 38

APPENDIX

Board of Supervisors, Navajo County, Arizona, prepared statement .................. 120

Dybdahl, Johanna, Chairperson, Southeast Tribal Department of Transportation Commission, prepared statement ............................................................ 121

Gila River Indian Community, prepared statement ............................................. 97

Healy, Sr., C. John, President/Transportation Director, Fort Belknap Indian 

Community, prepared statement ........................................................................ 104

His Horse Is Thunder, Ron, Chairman, Standing Rock Sioux Tribe, letter 

with attachment ................................................................................................... 123

Ho-Chunk Nation, prepared statement ................................................................. 102

Polston, JoAnn, First Chief, Healy Lake Traditional Council, prepared statement ...................................................................................................................... 100

Sinyon, Elaine, Tribal Administrator, Cheesh-na Tribal Council, letter with 

attachments .......................................................................................................... 86

Smith, Chadwick, Principal Chief, Cherokee Nation, prepared statement ........ 85

Written questions submitted by Hon. Byron L. Dorgan to: 

John R. Baxter .................................................................................................. 206

Jerry Gidner ...................................................................................................... 208

Yellow Bird-Steele, John, President, Oglala Sioux Tribe, letter .......................... 94

(1)

TRANSPORTATION ISSUES IN INDIAN 

COUNTRY 

THURSDAY, JULY 12, 2007

U.S. SENATE, 

COMMITTEE ON INDIAN AFFAIRS, 

Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m. in room 

485, Russell Senate Building, Hon. Byron L. Dorgan, Chairman of 

the Committee, presiding. 

OPENING STATEMENT OF HON. BYRON L. DORGAN,

U.S. SENATOR FROM NORTH DAKOTA 

The CHAIRMAN. We will call the hearing to order. This is a hearing of the Indian Affairs Committee. We are here today to discuss 

transportation issues with respect to Indian Country. We will hear 

from both Federal and tribal representatives this morning. 

As many of us prepared to travel to this hearing this morning, 

some short distances and some long distances, we might have wondered whether traffic was going to be good or bad, or if there was 

a delay in public transportation. But none of us would have probably worried very much about whether the roads to the Russell 

Senate Office Building would be impassable, unpaved, or difficult 

to traverse, like members of the Hoopa Valley Tribe in California 

encountered in the first photograph we will put up.

2

None of us worried that a bridge over the Potomac River might 

be washed away. We cross those bridges every morning easily. We 

don’t worry that the bridge will be washed away like the bridge on 

the second photo. This is from the Potawatomi Reservation located 

in Kansas.


712dor1.eps 712dor5.eps
3

Additionally, even the fact that we have public transportation 

that we can count on is a luxury that is unheard of in many parts 

of Indian Country. 

A transportation system is the lifeline for any community, making it possible for your children to go to school, families to travel 

and receive health care, attend jobs, get us readily to work. So a 

good transportation system allows the community to grow economically, and something that most communities throughout this Country take routinely for granted. 

Regrettably, those in Indian Country are not able to do the same. 

The statistics are really quite alarming. Motor vehicle injuries are 

the leading cause of death of Native Americans ages 1 to 34, and 

the third leading cause of death overall for all Native Americans. 

Death rates in motor vehicle accidents for American Indians are 

nearly twice as high as for other races. Given that tribal youth are 

particularly and especially at risk, I joined my colleagues last year 

in successfully securing tribal participation in the Safe Routes to 

Schools program. This program encourages children to walk or bicycle to school safely, and improves pedestrian safety in the vicinity 

of schools. 

Equally disturbing is the fact that American Indians have the 

highest rate of pedestrian injury and death per capita of any racial 

or ethnic group in the United States. I have a photo, three that we 

will show. Let me show you this photo, in which children from the 

Nisqually Tribe in Washington State are forced to sprint between 

vehicles on a very busy highway to get to school.


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4

This is one of the main highways running through the reservation. Located on one side of the highway are the largest retail enterprises, while almost all residences and government offices are on 

the other side. This photo demonstrates the desperate need of a pedestrian crossing to enable Indian tribal members and employees 

and children to safely cross and have safe access to services on the 

reservation. 

The poor condition of Indian Country roads is equally distressing. 

It is a major contributing factor to these troubling statistics. Seventy-six percent of BIA and tribal roads are unimproved earth and 

gravel. 

So how can you expect the community to thrive when basic infrastructure needs aren’t being met? A South Dakota tribal leader told 

me an interesting story during a listening session that I had in 

Minneapolis, Minnesota a while back. He said that his tribe’s roads 

were so full of potholes that drivers were forced to zig-zag and were 

getting used to zig-zagging all over the road. The way that a tribal 

police officer can tell if someone was driving drunk was if they 

were driving straight. 

[Laughter.] 

The CHAIRMAN. Road maintenance in Indian Country is grossly 

underfunded, estimated at less than $500 spent per road mile on 

Indian Country roads, compared to $4,000 to $5,000 spent by 

States. But you would not know that by looking at the Administration’s budget request, which has fallen in the past several years, 

not to mention the Federal Government’s trust responsibilities. 

Thankfully, tribes have been working in creative ways, innovative ways to improve the situation. 

I have one last photo. This is a before and after photo of a residential road on the Standing Rock Sioux Indian Reservation located in North and South Dakota. The before picture shows the 

typical quality of roads in most Standing Rock communities, and 


712dor3.eps
5

the after picture shows what the community streets look like now 

thanks to the innovative flexible financing advanced construction 

agreement between the tribe and the BIA. This agreement allowed 

for the completion of a $27 million project in a few years, instead 

of taking 20 years under private pay as you go plans. Standing 

Rock was the first tribe in the Country to utilize this type of innovative financing.


712dor4.eps 712dor2.eps
6

So we hold hearings in this Committee. We hold hearings on improving housing and health care and education, economic development. What is essential to providing all of these necessities? What 

ties it together? Safe roads, good transportation, good infrastructure. 

So we are holding a hearing today to discuss the current transportation issues in Indian Country, and to discuss innovative and 

practical ways to improve tribal transportation services. 

I want to make one additional point. Indian Country is not a 

Third World country. It is part of the United States of America. 

But if you travel across this Country and go to Indian reservations, 

you too often see people living in Third World conditions. That has 

to stop. This Country has to do more to meet its trust responsibility. We talk about that in so many areas. Today, once again we 

talk now about infrastructure and roads. Once again, our Country 

has a responsibility and this Committee is going to do everything 

it can to see that our Country meets its responsibilities to the first 

Americans. 

Let me call on my colleague, Senator Tester. 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. Thank you, Mr. Chairman. I also want to thank 

you for holding this hearing today on transportation, something 

that is critically important. You called it the lifeline, and I agree 

with that 100 percent. 

You know, I have met with a lot of Native American groups in 

the last six and a half months, and there are a lot of needs out 

there, from health to housing to water, and roads and transportation are critically important. As we talk about economic development in Indian Country, where we have 50 percent, 85 or 90 percent unemployment, transportation is critically important, whether 

you are talking about pedestrian transportation or transportation 

for cars and trucks, or even access to rails. I think it is important 

that we focus on the things that will help drive those unemployment rates down and make Indian Country all it can be. 

So Mr. Chairman, I really appreciate your efforts in this regard 

and I look forward to the hearing today. 

The CHAIRMAN. Senator Tester, thank you very much. 

Today, we have two panels. In the first panel, we will hear from 

Mr. Jerry Gidner, Assistant Secretary-designate, Deputy Director 

for the Office of Indian Services, the BIA. You may come forward, 

Mr. Gidner. He is accompanied by Mr. Leroy Gishi, Division Chief, 

the Division of Transportation of the BIA. Welcome. 

Mr. John Baxter, Associate Administrator of the Federal Lands 

Highways, Federal Highway Administration, U.S. Department of 

Transportation, is with us. Mr. Baxter, welcome. 

I would tell all of you that your entire statements will be made 

a part of the permanent record. We would ask you to summarize 

during your presentation, and then we will inquire of you. We will 

have a second panel following your presentation as well. 

Mr. Gidner, you may proceed. 

7

STATEMENT OF JERRY GIDNER, ASSISTANT SECRETARY–

DESIGNATE; DEPUTY BUREAU DIRECTOR, OFFICE OF

INDIAN SERVICES, BUREAU OF INDIAN AFFAIRS,

DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY LEROY 

GISHI, DIVISION CHIEF, DIVISION OF TRANSPORTATION 

Mr. GIDNER. Thank you, Mr. Chairman. 

Senator Tester, Members of the Committee, I am Jerry Gidner. 

I am the Deputy Bureau Director for Indian Services within the 

Bureau of Indian Affairs. With me, as you mentioned, is Leroy 

Gishi, our Division Chief for Transportation. 

I want to give just a brief overview of our program today, which 

has two major components: road construction and road maintenance. We manage these programs in close cooperation and in a 

very good relationship with both the Federal Highways Administration and with the Indian Reservation Roads Program Coordinating Committee. You will hear from Mr. Pete Red Tomahawk, 

who is the Chairman of that committee, in the next panel. 

The construction part of our program is really driven by the inventory. Maintaining the roads inventory is one of the most important things that BIA does in relationship to this program. The inventory drives the distribution of the bulk of the Federal highways 

construction money. Of the $370 million appropriated this year for 

roads construction, $277 million of it is distributed in accordance 

with the formula that drives the inventory. 

That inventory is growing rapidly. It has grown 23 percent since 

Fiscal Year 2000, although that number varies by region. In Alaska, for example, the inventory has increased by over 1,800 percent 

in the last 10 years. So there are a lot of miles of road being added 

to the inventory. 

In Fiscal Year 2006, there were 82,000 miles in inventory under 

various ownership, with 27,000 miles of those BIA roads. As you 

mentioned, Mr. Chairman, approximately 76 percent of those roads 

are unpaved roads. For the next Fiscal Year, we expect inventories 

which we are finalizing right now for the next year’s distribution, 

we expect the number of miles of roads to be in the 90,000 to 

95,000 range. 

The second part of the program is road maintenance. It is a very 

important program, as you mentioned. It is funded by BIA appropriations, rather than by dollars coming from the Federal Highway 

Trust Fund. We have a backlog of approximately $120 million for 

our road maintenance backlog. Funding has been flat or decreasing, and as you noted, many of the roads are unsafe and deteriorating. 

We have many challenges in this program. The first challenge is 

that this has become a tribal shares program, which is a good 

thing, but it also raises some challenging issues. TEA–21, the precursor to SAFETEA–LU, required that we conduct a negotiated 

rulemaking on the distribution of these funds. What emerged is 

that the dollars that each tribe gets depends on various factors pertaining to the roads in the inventory. 

We are seeing dramatic changes in the funding for the regions 

and tribes as regions and tribes get their inventory updated. Small 

tribes with fewer roads or tribes that have not updated their inventory are seeing relatively fewer dollars compared to other tribes, 

8

and many of those tribes are calling for a change to the regulations. 

We believe changing the regulations now would be premature. 

We believe over the next 2 to 3 years, the inventory will be essentially updated and then we will have a much better picture of 

where the distribution is going to be. We think at that time, it 

would be more appropriate to discuss any changes to the formula 

that drives the distribution. That would also coincide, by the way, 

with the timing for a SAFETEA–LU reauthorization. 

The second challenge is that SAFETEA–LU imposes on us a 30 

day limit to get dollars to the tribes once we receive them from 

Federal Highways. We certainly support that, but the dollars do 

have to go to tribes through contracts under the Self-Determination 

Act and the project does have to be on an approved transportation 

improvement plan, and those requirements can conflict. 

We have worked very hard this year to streamline our processes 

from mundane changes, such as simplifying the accounting codes 

to make the transactions easier, to more aggressive changes. We 

have created a template for the funding agreements for the selfgoverning tribes which is now being used to simplify that process. 

My office is finalizing a template for the self-determination contracts to simplify that process. Unfortunately, tribes can still not 

use the money until there is a contract in place and the TIP has 

been approved. 

The third challenge we mentioned before is road maintenance. 

Frankly, it is impossible to maintain the roads at safe levels with 

the tools that we currently have. 

The fourth challenge is the inventory. There are many policy 

questions about what should be in the inventory, what roads 

should be allowed to be in it, and how they should contribute to 

the amount of dollars that each tribe receives based on that formula. We are working with the coordinating committee to resolve 

those issues and come up with a position. We hope that we will 

soon have a consensus position on that. If we don’t, then BIA will 

just move to make a decision and decide what should be in the inventory and what should not. 

Logistically, maintaining the inventory is a great deal of work. 

Because we do not have internet access, tribes do not have the ability to enter the data themselves, unless they come to one of our facilities to use our system. We are right now working on creating 

a duplicate system that will allow tribes to enter the data themselves, which will then be harmonized with our system on a daily 

basis. We plan to have that system available in Fiscal Year 2008. 

That will make the tribal data entry and the whole process much 

easier. 

With that, Mr. Chairman, I will conclude and would welcome any 

questions. 

[The prepared statement of Mr. Gidner follows:]

PREPARED STATEMENT OF JERRY GIDNER, ASSISTANT SECRETARY-DESIGNATE; DEPUTY

BUREAU DIRECTOR, OFFICE OF INDIAN SERVICES, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR; ACCOMPANIED BY LEROY GISHI, DIVISION CHIEF,

DIVISION OF TRANSPORTATION

Good morning, my name is Jerry Gidner. I am the Deputy Bureau Director for 

Indian Services in the Bureau of Indian Affairs (BIA) at the Department of the InteVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00012 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
9

rior. With me today is LeRoy Gishi, the Division Chief of our Division of Transportation. We are pleased to be here today to provide you with an overview of the BIA’s 

Road Maintenance Program and the Indian Reservation Roads (IRR) Program. The 

IRR is jointly administered by the BIA and the Federal Highways Administration 

(FHWA). 

The BIA has been involved in the repair and reconstruction of roads on Indian 

Reservations since the 1920s. From 1950 until 1983, Congress appropriated annual 

construction and maintenance funds to the BIA to maintain, repair and construct 

reservation roads on Indian Reservations. Approximately $1.2 billion were provided 

during this time for both construction and maintenance. The Surface Transportation 

Assistance Act of 1982 created the Federal Lands Highways Program which established IRR as a category of public roads providing access to or within Indian reservations, lands, communities and Alaska Native villages. This funding has contributed to the improvement of roads and the replacement or rehabilitation of deficient 

bridges on or near reservations throughout Indian country. Shortly after the establishment of the IRR program under the Federal Lands Highways Program (Title 23 

USC Chapter 2), only road maintenance funds were appropriated through the Department of the Interior. Since the establishment of the IRR Program, the Federal 

construction investment in BIA, tribal, state, county and local roads and bridges 

that comprise the IRR system has exceeded $4.5 billion. 

Despite these efforts, there is still a great need for improving the transportation 

system in Indian country. We view this as a joint responsibility not only of Federal 

agencies but a shared responsibility of state and local governments with transportation investments on or near Indian and Alaska Native communities. Improved 

transportation systems provide increased public safety and economic opportunities 

in these communities. Transportation networks in Indian and Alaska Native communities are critical for economic development stimulus by providing access to markets. In addition, safe roads are important when transporting people in rural areas 

to schools, local hospitals, and for delivering emergency services. 

The IRR comprises over 82,000 miles of public roads with multiple owners, including Indian tribes, the BIA, states and counties. Coordination among all of these 

owners is required to pool available resources. 

The BIA transportation program currently implements both the Department of 

Transportation’s highway trust funded IRR program as well as the Department of 

the Interior’s funded Road Maintenance Program. 

Road Maintenance in the BIA 

The road maintenance program traditionally has been a responsibility of the 

owner agency. Of the 82,000 miles of IRR, the BIA has a responsibility for 27,000 

miles of roads designated as BIA system roads. The BIA receives tribal priority allocation (TPA) funding annually through the Department of the Interior’s appropriations for the administration of the road maintenance program for those roads. Approximately 30 percent of the tribes with BIA roads currently contract the road 

maintenance program under a self-determination contract or agreement. The annual 

amount of BIA road miles has increased by 23 percent since FY 2000. Of the 27,000 

miles of Indian reservation roads, 20,450 miles or 76 percent are unpaved roads and 

6,550 miles or 24 percent are paved roads. 

During the past 5 years, an annual average of $26 million has been appropriated 

for the road maintenance program. Periodic condition and deferred maintenance assessments are conducted to assess the maintenance needs in Indian country. Maintenance activities include patching, crack sealing, and striping of paved road surfaces, sign repair, culvert cleaning, snow and ice removal, and other emergency repair not eligible under the Highway Trust Fund emergency relief program. 

Road Maintenance Under SAFETEA–LU 

Provisions under the Safe, Accountable, Flexible, Efficient Transportation Equity: 

A Legacy for Users (SAFETEA–LU) now allow the use of up to 25 percent of a 

tribe’s IRR program funds for the maintenance of any eligible Indian reservation 

road. These funds can be used for the maintenance of roads and bridges as well as 

the purchase of equipment upon approval of the BIA and the FHWA. This is in the 

second year of implementation. There were no requests to maintain IRR roads in 

the first year of SAFETEA–LU. It is important to note that the eligible roads are 

all IRR and not only BIA or tribal roads and bridges. Under these provisions, the 

tribes may elect to use the funds for the maintenance of non-BIA roads. Although 

state and local roads are the responsibility of the respective state and local governments and have specific funds to maintain these roads, if these roads are not maintained, tribal governments may utilize a portion of the IRR funds to maintain these 

roads. Because this occurs within a unique tribal and state or local government 

10

agreement, the BIA does not maintain any information on the extent to which this 

may be occurring. 

Indian Reservation Roads Inventory 

Since November 2004, the current formula for distributing IRR program funds 

based on tribal shares was implemented through negotiated rulemaking with tribal 

governments. This formula utilizes data associated with the cost of constructing 

roads to an adequate standard, the usage of roads or traffic and the population of 

the tribe served. The data associated with the cost and the usage is maintained in 

a national database called the IRR inventory. The IRR inventory is a database of 

all public roads that meet the definition of an Indian reservation road. The IRR inventory is also used in the calculation of the shares of funding to be allocated to 

a tribe in a given year. The formula is described in detail within the IRR program 

regulations found at Title 25 of the Code of Federal Regulations, Part 170 (25 CFR 

170). Each year, the inventory may be updated by tribes to reflect the transportation needs which are ranked against the relative needs of other tribes. 

The national inventory and how it is used in the formula changed with the implementation of the regulations in November 2004 and the enactment of SAFETEA–

LU in August 2005. These changes allowed Tribes to use all of the IRR data in the 

formula calculation to generate their annual funding. Under the old formula, not all 

of the data was used to generate each Tribe’s funding. Those tribes with an active 

program for updating inventory data increase or maintain their relative share of the 

IRR funding. Not all tribes have updated their inventory; those that have not may 

have seen a reduction in their relative share of funding under the new formula. 

Tribes can receive training on how to update their inventories through the Tribal 

Technical Assistance Program (TTAP) centers established through the Intermodal 

Surface Transportation Equity Act (ISTEA) of 1991. 

In order to expedite Tribes’ ability to update their inventories, BIA is taking steps 

to make a duplicate IRR database available for Tribes to access and update information electronically. BIA hopes to have this system available in FY 2008. 

Because of new provisions in SAFETEA–LU, regulations and policy guidance are 

necessary so that uniform procedures are implemented for all tribes. The BIA is 

working closely with the IRR Program Coordinating Committee (Committee), established by regulation, on the implementation of the funding formula and the challenges in the inventory update process. The Committee responsibilities include providing input and recommendation to both the BIA and the FHWA for the IRR Program. Along with the FHWA, we have been working with the Committee and tribes 

on addressing the tribal concerns of the program through an update of the regulations. Until most of the tribes have updated their portion of the IRR inventory, any 

significant changes to the formula in regulation would be premature. It is estimated 

that only about 25 percent of the 562 federally recognized tribes have updated a significant portion of their eligible inventory. 

Conclusion 

Thank you for the opportunity to present testimony on an issue that is an important part of the economic infrastructure for tribes. We will be happy to answer any 

questions you may have.

The CHAIRMAN. Mr. Gidner, thank you very much. 

Next, we will hear from Mr. Baxter. Mr. Baxter, you may proceed. 

STATEMENT OF JOHN R. BAXTER, ASSOCIATE ADMINISTRATOR FOR FEDERAL LANDS HIGHWAYS, FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION 

Mr. BAXTER. Chairman Dorgan, Interim Vice Chairman Murkowski, Senator Tester and other Members of the Committee, 

thank you for the opportunity to testify today on tribal transportation, including the Indian Reservation Roads program and the 

Federal Highway Administration’s implementation of related 

SAFETEA–LU provisions. 

Improving safety on our roads is a national public health issue, 

particularly on tribal lands where the fatality rate is over four 

times the national average. More than two billion vehicle miles are 

11

traveled annually on the Indian reservation road system, where 

over 66 percent of the 82,000 miles of roads is unimproved earth 

and gravel. Approximately 24 percent of the bridges are classified 

as deficient. 

These conditions make it very difficult for residents of tribal communities to safely travel to hospitals, stores, schools and employment centers. The Administration is committed to providing safe, 

efficient transportation for Indian lands and Alaska Native villages, while protecting the environment and cultural resources. 

SAFETEA–LU includes several provisions to improve the condition and safety of the Indian reservation road systems. SAFETEA–

LU includes a substantial increase in the funding for the program, 

ranging from $300 million in Fiscal Year 2005 to $450 million in 

Fiscal Year 2009, for a total of $1.86 billion over the life of the Act. 

SAFETEA–LU also provides a total of $70 million for an Indian 

reservation roads bridge program, resulting in a total amount of 

funding for the program of $1.93 billion. This is a 40 percent increase over the funding provided for a comparable period in TEA–

21. 

SAFETEA–LU strengthens the direct relationship between 

FHWA and the tribes, including the authority to enter into direct 

funding agreements with the tribes. In the past, the tribes worked 

directly with the BIA regional offices on our programs and projects, 

and BIA and FHWA administered the program with FHWA oversight. 

Now, eligible tribes have the option to enter into a reference 

funding agreement directly with FHWA for their respective share 

of program funding. To date, five tribes have entered into these 

agreements with FHWA. We currently are in negotiations with two 

additional tribes, and letters of inquiry and interest have been received from several more tribes. 

FHWA and the initial five tribes are working together for this 

first construction season, and together we and the respective tribes 

are dedicated to making these agreements successful. 

SAFETEA–LU also requires FHWA to complete a comprehensive 

national Indian reservation road inventory of eligible transportation facilities. The purpose of the inventory is to assess the true 

need and cost for tribal transportation, to ensure that the data of 

the existing inventory is accurate, and to help streamline the procedures that tribes utilize for updating their inventory. The inventory is the most significant factor used to calculate the tribal 

shares of the IRR program funding. 

FHWA, working with BIA, is nearing completion on the task of 

gathering and analyzing the data included in the current inventory, and verifying the accuracy of the data itself. It is our intent 

to continue to work with the BIA, the tribes, and the Indian Reservation Roads Coordinating Committee to improve the inventory 

annually and provide Congress a comprehensive report on the inventory. 

The goal of this process will be to ensure that the national IRR 

inventory not only reflects the true needs of tribal transportation, 

but more importantly, is equitable and fair for all tribes. 

We recognize that transportation is a critical tool for tribes to improve the quality of life in their communities. SAFETEA–LU proVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 S:\DOCS\37860.TXT JACK PsN: JACKF
12

vides tools and resources to improve tribal transportation and the 

department is actively implementing these provisions. 

We are committed to providing safe and efficient transportation 

options for tribal lands and to building more effective day to day 

working relationships with Indian tribal governments, reflecting 

respect for the rights of self-government and self-determination 

based on principles of tribal sovereignty. 

Mr. Chairman, Senators, thank you again for this opportunity. I 

will be pleased to answer any questions you may have. 

[The prepared statement of Mr. Baxter follows:]

PREPARED STATEMENT OF JOHN R. BAXTER, ASSOCIATE ADMINISTRATOR FOR FEDERAL

LANDS HIGHWAYS, FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF

TRANSPORTATION

Chairman Dorgan and Members of the Committee, thank you for the opportunity 

to testify today on tribal transportation, including the Indian Reservation Roads 

(IRR) Program and the Federal Highway Administration’s (FHWA) implementation 

of related SAFETEA–LU provisions. 

Introduction 

The IRR system provides access to and within Indian reservations, Indian trust 

land, restricted Indian land, eligible Indian communities, and Alaska Native villages. The IRR Program serves over 560 federally-recognized Indian Tribes and 

Alaska Native villages and currently consists of over 82,000 miles of road, 4,500 

bridges, and other transportation facilities. These facilities link housing, schools, 

emergency services, and places of employment, as well as facilitate employment and 

resource use. 

More than 2 billion vehicle miles are traveled annually on the IRR system, even 

though it is among the most rudimentary of any transportation network in the 

United States. Over 66 percent of the system is unimproved earth and gravel. Approximately 24 percent of IRR bridges are classified as deficient. These conditions 

make it very difficult for residents of tribal communities to travel to hospitals, 

stores, schools, and employment centers. 

The poor road quality also affects safety. Recently, U.S. Secretary of Transportation Mary E. Peters announced that traffic deaths on U.S. roads were down slightly in 2006 according to preliminary figures, but far too many lives continue to be 

lost. The annual fatality rate on Indian reservation roads continues to be more than 

4 times the national average. This is a very serious problem. The Administration 

is committed to providing safe, efficient transportation for both residents and visitors, for access to and within Indian lands and Alaska Native villages, while protecting the environment and cultural resources. 

The Safe, Accountable, Flexible, Efficient Transportation Equity Act—A Legacy 

for Users (SAFETEA–LU) includes several provisions to improve the IRR system, 

with a particular focus on safety. SAFETEA–LU also strengthens the direct relationship between FHWA and the Tribes, including the authority to enter into direct 

funding agreement with Tribes and the requirement for FHWA to conduct a National Indian Reservation Road Inventory. 

Status of SAFETEA–LU Implementation 

Funding 

Indian Reservations Roads Program 

As authorized under SAFETEA–LU, the Federal Lands Highways Program 

(FLHP) receives almost a 27 percent increase for the 5-year period of the Act compared to the last 5 years of Transportation Equity Act for the 21st Century (TEA–

2l)—a total of approximately $4.5 billion over the life of the Act. Direct transfer of 

apportioned funds to a Federal agency, upon State request, is now allowed. FLHP 

funds also can be used as the State or local match for most types of Federal-aid 

highway or transit funded projects that provide access to or within Indian lands. 

The IRR Program, in particular, received a substantial increase in funding. IRR 

Program levels range from $300 million in Fiscal Year (FY) 2005 to $450 million 

in FY 2009, for a total of $1.86 billion over the life of the Act. The funds are distributed according to a formula based on tribal shares, which was implemented through 

a negotiated rulemaking with tribal governments. Also, SAFETEA–LU increased 

13

the eligible uses of the IRR Program funds by allowing a Tribe to utilize up to 25 

percent of its share of funds for road and bridge maintenance activities. 

SAFETEA–LU also replaces the previous set-aside with a separate authorization totaling $70 million ($14 million per year) for the IRR Bridge Program (IRRBP) to 

help design and rehabilitate deficient bridges in Indian Country. Under SAFETEA–

LU, the total amount of funding for the IRR Program, including the IRRBP, is $1.93 

billion. This is a 40 percent increase over the funding provided for a comparable period in TEA–21. 

National Scenic Byways Program 

Indian Tribes have participated in the National Scenic Byways Program since its 

inception under the Intermodal Surface Transportation Efficiency Act of 1991 

(ISTEA). From 1992–2005 (prior to SAFETEA–LU), FHWA provided at least $3.4 

million for projects on byways with direct tribal involvement or for byways crossing 

tribal lands. SAFETEA–LU amended section 162 of title 23, United States Code, to 

provide the Secretary of Transportation the authority to make grants directly to Indian Tribes and to allow Indian Tribes to nominate Indian roads directly to FHWA 

(without going through a State department of transportation) for possible designation as a National Scenic Byway or American Road. 

FHWA has participated in tribal transportation conferences to inform Tribes of 

these changes to the National Scenic Byways Program. FHWA also has worked with 

the America’s Byways Resource Center (Duluth, MN) to establish a tribal liaison position within the Resource Center. The liaison started work in May 2007, and will 

provide technical assistance to Indian Tribes in establishing tribal scenic byways 

programs and designating roads as Indian Tribe scenic byways. 

In addition, FHWA has modified its grant application procedures so Indian Tribes 

may submit grant applications directly to FHWA and has included information on 

tribal participation in the National Scenic Byways Program. In FY 2006, Tribes submitted 5 applications directly to FHWA and 8 applications through the State departments of transportation, requesting a total of $1.3 million. The Department selected 

12 of the projects, providing a total of $789,816. Nationwide, FHWA received 417 

applications requesting $53.4 million, and $25.5 million was provided for 309 

projects. 

Public Lands Highway Discretionary Program 

The Public Lands Highway Discretionary (PLHD) program provides funding to 

any project eligible under title 23, United States Code, that is within, adjacent to, 

or provides access to Federal public lands. For FY 2007, there are $87.3 million 

available for the PLHD program. In FY 2007, unlike the past several years, projects 

for PLHD program funding were not designated by Congress. Applications for the 

PLHD program are being evaluated based on whether the specific project meets the 

statutory criteria for the program and how well the project addresses the Department’s priorities of improving safety and reducing congestion. For each application, 

we will consider the benefit of the safety improvement, the need for the safety improvement, and the likelihood of expediting implementation of the improvement. A 

similar analysis will be done for congestion relief. We are in the process of reviewing 

applications now, and will be announcing awards this summer. 

Safety 

Road Safety Audits 

In recognition of the need to improve safety on Indian reservation roads, FHWA 

has conducted several road safety audits (RSA) with Tribes. An RSA is a formal 

safety performance examination of transportation systems within a reservation or 

Alaska Native village and is an effective tool for identifying existing safety issues 

and eliminating them through improved planning and design. To promote their benefits, FHWA sponsored training on RSAs and Road Safety Fundamentals with four 

Tribes this past year Tohono O’odham and Navajo Nations (in cooperation with the 

AZ DOT and others), Santa Clara Pueblo and Jemez Springs Pueblo (in cooperation 

with the NM DOT), and Standing Rock Sioux (in cooperation with ND and SD 

DOT). This training specifically targeted local and tribal transportation experts. A 

document summarizing the findings and lessons learned will be completed by the 

end of this year. Additional RSAs are planned for later this fiscal year. 

Also, FHWA, with the help of the Tribal Technical Assistance Program (TTAP), 

continues to provide technical assistance and training to Tribes on conducting their 

own RSAs. For example, FHWA has provided funding and support to the Northern 

Plains Tribal Technical Assistance Program to sponsor a Road Safety Audit Outreach Coordinator, who has provided training and RSAs for the Spirit Lake Nation, 

the Winnebago Nation, and others. 

14

Safe Routes to Schools 

The Safe Routes to School program is a federally funded, but State managed and 

administered grant program established by section 1404 of SAFETEA–LU. Each 

State receives not less than $1 million each fiscal year to plan, design, and construct 

infrastructure-related projects that will improve the ability of students to walk and 

bicycle to school. Safe Routes to Schools funding also may be used for non-infrastructure-related activities to encourage walking and bicycling to school. FHWA has 

determined that federally recognized Tribes are eligible sub-recipients of this State 

administered program. Most States are in the early stages of implementing this new 

program. States with high tribal populations, such as those in the Southwest, are 

reaching out to tribal groups and encouraging them to apply for funding. For example, in Arizona, the Safe Routes to School coordinating committee includes tribal 

representatives from the Tohono O’odham and Navajo Nations. 

High Risk Rural Road Program 

SAFETEA–LU established a new safety program, funded as a set-aside at $90 

million per year, known as the High Risk Rural Roads Program (HRRRP). This federally funded, State administered program is intended to reduce fatalities and injuries on small rural roads with above average crash rates. Tribal roads that meet 

the criteria for improvements are eligible for the funding. FHWA has undertaken 

extensive outreach to Tribes on the HRRRP, including developing and disseminating 

guidance and making presentations at a variety of conferences, including National 

and Regional Tribal Transportation Symposia, and Local Technical Assistance Program and TTAP meetings. 

Other 

Indian Reservation Road Program Changes 

SAFETEA–LU made significant changes to the IRR Program and the Federal 

Transit Program that will greatly assist tribal transportation. Tribes meeting eligibility requirements now have the option of entering into IRR Program agreements 

directly with FHWA for their respective share of IRR Program funding. Section 1119 

of SAFETEA–LU amended the IRRBP to allow funding for preliminary engineering 

activities for the replacement or rehabilitation of structurally deficient or functionally obsolete IRR bridges. As a result of the changes to the IRRBP, in consultation 

with the Indian Reservation Roads Coordinating Committee (IRRCC), FHWA issued 

a notice of proposed rulemaking (NPRM) on June 5, 2007. The NPRM proposes a 

number of changes, including an explanation of the priority process for both Bureau 

of Indian Affairs (BIA) and non-BIA owned bridges, separate queues for both construction and preliminary engineering, and a reduction in the funding ceiling for 

construction of non-BIA owned bridges. 

Section 1119(k) of SAFETEA–LU allows Tribes and States to enter into road 

maintenance agreements for which the Tribes assume the maintenance responsibility for the State on Indian Reservation Roads. These Agreements are negotiated 

directly between the State and Tribe. FHWA has provided an annual report to both 

the Senate and the House in each of the past 2 years with the results of these 

agreements. 

Deputy Assistant Secretary for Tribal Government Affairs 

Section 1119(1) of SAFETEA–LU requires the Department of Transportation to 

have, within the Office of the Secretary, a Deputy Assistant Secretary for Tribal 

Government Affairs appointed by the President. The duties of the Deputy Assistant 

Secretary are to plan, coordinate, and implement the Department of Transportation 

policy and programs serving Indian tribes and tribal organizations and to coordinate 

tribal transportation programs and activities in all offices and administrations of 

the Department and to be a participant in any negotiated rulemaking relating to, 

or having an impact on, any projects, programs, or funding associated with the tribal transportation programs. Currently, the Deputy Assistant Secretary for Intergovernmental Affairs is carrying out the functions prescribed for the Deputy Assistant 

Secretary for Tribal Government Affairs, including coordinating tribal transportation programs within the Department. 

Direct Funding Agreements With Tribes 

In the past, Tribes worked directly with the BIA Regional Offices on IRR programs and projects, either through Direct Service Agreements, Self-Determination 

Act Contracts, or Self-Governance Agreements, and BIA and FHWA administered 

the IRR Program with FHWA oversight. Now, eligible Tribes are able to enter into 

Referenced Funding Agreements directly with FHWA for their respective share of 

IRR Program funding to carry out the Tribes’ IRR programs or projects in accordVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00018 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
15

ance with the Indian Self-Determination and Education Assistance Act. While the 

BIA has retained its program management and oversight role on a national and regional level, these agreements have increased the FHWA-Tribal government relationship on both a program and project level. 

Under these direct agreements, the amount a Tribe receives equals the amount 

of funding that the Tribe would otherwise receive in accordance with the formula 

for distributing IRR Program funds, plus an amount, as determined by the Department of Transportation, that would otherwise be withheld by BIA for program or 

project administration. A Tribe assumes all powers, functions, and duties that the 

Secretary of Interior would have performed and that are not inherently Federal or 

cannot be transferred. The agreements identify the roles and responsibilities of each 

party, as well as the specific work that is to be performed with the funds being received. A Tribe is eligible to participate if it can provide conclusive evidence of financial stability and management capability during the preceding three fiscal years. 

Conclusive evidence exists if the Tribe had no uncorrected significant and material 

audit exceptions in their annual audits. 

To date, five Tribes have entered into these agreements with FHWA—the Standing Rock Sioux Tribe from North and South Dakota, the Ramah Navajo Chapter 

from New Mexico, the Chickaloon Native Village from Alaska, the Assiniboine and 

Sioux Tribes of the Fort Peck Reservation from Montana, and the Oglala Sioux 

Tribe from South Dakota. We currently are in negotiations with two additional 

Tribes and letters of inquiry and interest have been received from several more 

Tribes. FHWA and the initial five Tribes are currently working together through 

this first construction season. Technical assistance with various phases of existing 

and new projects, as well as capacity building, is being provided by FHWA. Together, we and the respective Tribes are dedicated to making these agreements successful. 

National Indian Reservation Road Inventory 

SAFETEA–LU requires FHWA to complete a comprehensive national IRR inventory of eligible transportation facilities and report to Congress by November 2007 

(23 U.S.C. 202(d)(2)(G)). The purpose of the inventory is to develop the true need 

and cost for tribal transportation, to ensure that the data in the existing inventory 

is accurate, and to help streamline the procedures that Tribes utilize for updating 

their inventory. The inventory is the most significant factor used to calculate the 

tribal shares of IRR Program funding. Hence, it is imperative that a Tribe’s data 

shown in the inventory be as accurate as possible. 

The inventory includes, at a minimum, all transportation facilities eligible for assistance under the IRR program that a Tribe has requested, including all facilities 

in the BIA inventory since 1992, facilities constructed or reconstructed with Highway Trust Fund dollars (other than the Mass Transit Account) under the IRR program since 1983, facilities owned by an Indian tribal government, primary access 

routes, and community streets or bridges within the boundary of a recognized Indian community or reservation or Alaska Native village. 

FHWA is nearing completion on the initial task of gathering information for the 

inventory. This extensive activity has included reviewing existing data for completeness, carrying out onsite surveys of more than 400 individual sections of road 

throughout Indian Country to verify correctness of data, addressing and correcting 

regional and national structural and cost data of the inventory and working with 

the BIA and Tribes to eliminate the barriers that have caused rejection of data or 

restriction of tribal input to the existing system. FHWA, BIA, and the IRRCC have 

all worked together to eliminate roadblocks and inconsistencies in the current inventory system, to allow easier access to the system, and to develop clearer instructions 

on actual submission requirements. In addition, FHWA is working directly with 

Tribes, BIA, and other State and Federal agencies to collect data on established 

costs of other eligible facilities not yet included in the existing inventory that are 

eligible for use of IRR Program funds. Although these facilities currently are not included in the formula used to calculate the amount of funding that each Tribe receives annually, this data will help in the determination of the true national needs 

of the tribal transportation systems. 

The fluidity and constant evolvement of the inventory makes this effort a ‘‘snapshot’’ in time and interim in its nature. For instance, a road may be in the inventory 

as a gravel surface road, but may be paved in the future. This change will require 

the inventory to be updated to reflect this new surface type and other changed conditions. FHWA plans on updating this national IRR inventory annually as part of 

a continuing effort of all parties involved to ensure that the national IRR inventory 

reflects the true needs of tribal transportation, but, more importantly, is equitable 

and fair for all Tribes. 

16

Outreach 

FHWA staff has visited tribal governments over the past several years to see firsthand the transportation infrastructure on reservations and also has met with individual Tribes during the annual National Tribal Transportation Conference. We 

have seen and heard about successes and partnerships between Tribes and States, 

but we also have seen roads and infrastructure that are not at an acceptable level. 

FHWA continues to work with numerous tribal and State transportation organizations, the IRRCC, as well as the BIA in carrying out informational meetings and 

presentations covering many transportation issues and potential funding opportunities in locations across the country. These meetings and visits give FHWA a valuable perspective on the state of tribal programs and help to identify program 

strengths and weaknesses. 

TTAP continues to be a valuable and popular program with tribal governments. 

The purpose of our seven TTAP centers is to foster a safe, efficient, and environmentally sound surface transportation system by improving the skills and increasing the knowledge of local transportation professionals. This year FHWA re-competed and awarded new cooperative agreements for TTAPs for the California-Nevada and Alaska regions, since the prior agreements expired. FHWA awarded the 

California-Nevada region TTAP to the National Indian Justice Center in Santa 

Rosa, California, and the Alaska TTAP to the University of Alaska Fairbanks Interior-Aleutians campus. While some have expressed concerns about the change in the 

TTAP center for Alaska, FHWA is confident that the cooperative agreement will be 

beneficial for delivering training, technical assistance, and information to Alaska 

Native Tribes, villages and communities. 

FHWA also participates in research and outreach efforts to gather and disseminate information important to tribal transportation. Recently, FHWA contributed to 

the Transportation Research Board’s (TRB) study to provide information useful to 

tribal governments and Federal, State, and local agencies to help in determining the 

state of tribal transportation programs and the steps needed to assist Tribes in developing the capacity to perform and manage effectively transportation-related functions. This effort was authorized by the American Association of State Highway and 

Transportation Officials (AASHTO), through the National Cooperative Highway Research Program (NCHRP). TRB published the results of the study May 29, 2007, 

in a report entitled ‘‘NCHRP Synthesis 366, Tribal Transportation Programs: A Synthesis of Highway Practice.’’

Conclusion 

Transportation is a critical tool for Tribes to improve the quality of life in their 

communities. The challenges facing us are to maintain and improve transportation 

systems serving Indian lands and Alaska Native villages in order to provide safe 

and efficient transportation options for residents and access for visitor enjoyment, 

while at the same time protecting environmentally sensitive lands and cultural resources. SAFETEA–LU provided tools and resources to improve tribal transportation and the Department is actively implementing these provisions. We are committed to building more effective day-to-day working relationships with Indian 

Tribes, reflecting respect for the rights of self-government and self-determination 

based on principles of tribal sovereignty. 

Mr. Chairman, Senators, thank you again for this opportunity to testify. I will be 

pleased to answer any questions you may have.

The CHAIRMAN. Mr. Baxter, thank you very much. 

We have been joined by the Vice Chair of this Committee, Ms. 

Murkowski. Would you wish to make an opening statement? 

STATEMENT OF HON. LISA MURKOWSKI,

U.S. SENATOR FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. I will put my 

full comments in the record this morning, but appreciate the opportunity to listen to the testimony from both gentlemen this morning, 

and look forward to the comments from the other panel. 

As you know, the issue of transportation and access and the IRR 

program is a huge concern for us in the State of Alaska. We continue to express our concerns and frustrations over some of the 

bumps in the road, so to speak, that we continue to face. I look forVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00020 Fmt 6633 Sfmt 6601 S:\DOCS\37860.TXT JACK PsN: JACKF
17

ward to being able to ask those present here today to respond to 

some of my questions. 

[The prepared statement of Senator Murkowski follows:]

PREPARED STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM ALASKA

Mr. Chairman. I want to thank you for bringing us today for this oversight hearing on the Indian Reservation Roads program—a vitally important program to end 

the third world conditions that plague many of our Native communities. A vitally 

important program for Alaska’s Native Village’s, nearly all of which are not connected to the North American road system. 

In my State of Alaska, the Indian Reservation Roads program funds the construction and maintenance of roads and bridges within Alaska Native villages. In many 

cases these roads do not carry passenger vehicles but 4 wheelers and snow machines, which are the way that Alaska’s Native people access subsistence resources 

and haul their subsistence food home. These roads form the link to the village airport which is the only way out during the winter. 

This is not the first time that this Committee has taken testimony from the leaders of the Alaska Native community on the shortcomings of the Indian Reservation 

Roads program as it is implemented in Alaska. 

On June 4, 2003, the Committee heard testimony from Loretta Bullard, Executive 

Director of the regional tribal consortium in Alaska’s Bering Straits Region on this 

issue. 

Loretta told the Committee that a complete inventory of roads eligible for IRR 

funding in Alaska has never been compiled. That the Bureau of Indian Affairs never 

surveyed our Alaska Native villages to identify the roads eligible for support. That 

tribes were given ambiguous guidance as to which roads could be submitted to the 

Alaska inventory. And that very few tribes had mileage in the inventory because 

of this omission. 

When Alaska tribes learned about this omission which is costing them thousands 

and thousands in road funding, they attempted to submit inventory revisions to the 

BIA. They were first told that no matter how adequate their inventory submissions 

were—the BIA had arbitrarily limited the amount of new miles that could be included in the inventory. Then they were told that their submissions were not adequate. 

This caused no shortage of concern among the road engineers in the BIA Alaska 

Region who contended that they could not get a straight answer from BIA Albuquerque about the requirements for an adequate submission. They would submit inventory that they thought was adequate and it would be rejected without a reasonable explanation. I understand that Alaska is not the only BIA Region that has this 

concern. 

Alaska tribes that have miles in the inventory and are entitled to funds have 

fared no better. The Petersburg Indian Association, which had IRR funding sitting 

in the BIA, formulated a project to construct a road to a subsistence site. The city 

of Petersburg agreed to share the cost of constructing the road. But when it came 

time to construct the road, Petersburg could not get the money to which it was entitled out of the BIA. At the end of the Fiscal Year, the BIA turned Petersburg’s 

money back to the Federal Highway Administration. It took nearly a year—and a 

fair amount of congressional casework and speeches—for them to finally obtain their 

money. 

I would like to hear that all of the issues that this Committee identified at its 

2003 hearing have been resolved. In response to concerns about the accuracy of the 

BIA inventory, the Congress through SAFETEA–LU placed the responsibility of 

compiling a new comprehensive national inventory in the Federal Highway Administration. I am hopeful that this new inventory will be equitable to Alaska. I look 

forward to hearing about the progress in compiling this new inventory. 

The advance testimony suggests that there are still very significant problems with 

the Indian Reservation Roads program. I hope that this hearing will be a catalyst 

for much needed improvement in the program.

The CHAIRMAN. Thank you very much. 

Mr. Gidner, let me first ask the question, tell me the history of 

budget requests for the road funds that are necessary and the road 

funds that are used in the BIA to address these issues. 

Mr. GIDNER. For the road maintenance program? 

18

The CHAIRMAN. Yes. 

Mr. GIDNER. Well, the general history is that the requests have 

been declining for the road maintenance program. 

The CHAIRMAN. And what is the purpose of that? 

Mr. GIDNER. Well, as you are well aware, Mr. Chairman, when 

we develop a budget for a fiscal year, the Secretary is given the 

target budget to meet and the Assistant Secretary of Indian Affairs 

is given a target to meet, and we have to come in with a budget 

that meets that target. 

Unfortunately, in an area where most of our programs are underfunded, we have to make priority decisions on what gets more requests and what gets reduced requests. We certainly agree that 

road maintenance is a very important program, but in that budget 

process it has to compete with the fact that we have some reservations that don’t have 24 hour police coverage, or have woefully insufficient police coverage. 

So the short answer is, road maintenance is not getting additional funding because, as important as it is, there are other programs that are even more important for the safety of the communities, and that is where the budget requests have been. 

The CHAIRMAN. Yes, but the other programs are not getting adequate funding either. I mean, we just finished a hearing with respect to law enforcement and the desperate needs that exist in law 

enforcement, and the complaints about the lack of BIA funding and 

cooperation with respect to law enforcement. 

The reason I am asking you about road funding is that you described, and I think accurately so, you have responsibility for 

27,000 miles of roads, and I believe 76 percent are unpaved. You 

have seen the pictures. I have seen the pictures. You have driven 

on those roads. I have driven on those roads. Many of them are in 

desperately poor condition. 

It is essential as we struggle to try to determine how we build 

some infrastructure and opportunity on Indian reservations that 

we invest in that infrastructure. I guess I don’t understand a request for less money. On the maintenance account, the request has 

decreased, I guess it is the fifth straight years, isn’t it, that is has 

decreased? 

Mr. GIDNER. It may be. I am not sure of the 5-year history. 

The CHAIRMAN. Are there discussions inside the agency that 

would say, you know, this doesn’t make much sense. We have a 

crying need there, and why would we not try to find a way to increase some funding when you have a desperate need, rather than 

propose decreasing funding? 

Mr. GIDNER. We do have those discussions. Again, I can only say, 

as I did before, road maintenance has to fight or compete for resources with other programs that affect safety such as law enforcement. We don’t particularly like being in that situation ourselves, 

Mr. Chairman, but that is where we are. 

The CHAIRMAN. But do you protest? I mean, is there a pretty aggressive debate inside before the President’s budget comes out that 

says, you know what, we have responsibility for 27,000 miles of 

road here, and 76 percent of them unpaved, and many of them in 

desperate conditions with troubled bridges and so on, and we need 

to at least, if not keep even, we need to increase funding, and we 

19

certainly don’t want to decrease funding? What is happening behind the scenes? 

Mr. GIDNER. I think using the word aggressive to describe our 

debate would be downplaying their intensity, to be honest. We have 

a lot of debates, and wide-ranging, and all the players in the room 

who have to fight for budgets for their programs. We brief that 

with the Assistant Secretary, and he briefs it with the Secretary. 

It is a fairly rigorous process, sir. 

The CHAIRMAN. Mr. Baxter, you come at this from a slightly different perspective. You are over in DOT. 

Mr. BAXTER. Yes, sir. 

The CHAIRMAN. Describe for me again, in recent years the flow 

of funding to the reservations as a result of the various programs 

that you administer. 

Mr. BAXTER. Well, as I mentioned, SAFETEA–LU actually resulted in about a 40 percent increase in the program compared to 

previous years. We have seen increases in the Indian reservation 

roads programs over the last several years, and a substantial increase in SAFETEA–LU comparatively with other programs in 

terms of overall growth of the program in the legislation. So we 

have seen an increase in the dollars. 

There are always issues with having enough money for the basic 

needs that we have, but the program has been growing substantially. 

The CHAIRMAN. When I use this statistic, road maintenance in 

Indian Country is grossly funded, it was talking about a maintenance account at $500 per road mile in Indian Country roads; 

$4,000 to $5,000 in equivalent miles spent by States. Are you familiar with those numbers? 

Mr. BAXTER. I could not verify the numbers from a State DOT 

versus a tribal perspective, but I suspect there are substantial differences in the number per mile. 

The CHAIRMAN. And that would obviously result in infrastructure 

that is in much less—let me frame it differently. That would result 

in roads that are not nearly as well maintained on Indian reservations as they are in the rest of the Country. Is that predictive? 

Mr. BAXTER. That is probably fair to say. That is part of the reason that SAFETEA–LU also provided a provision to allow a percentage of the Indian reservation roads program for maintenance 

purposes. 

The CHAIRMAN. We have testimony in the next panel from Pete 

Red Tomahawk, Director of Transportation Safety and Road Maintenance at Standing Rock. I have known Mr. Tomahawk for many, 

many years. He does an excellent job, but the fact is, the resources 

don’t exist in sufficient quantity to make the improvements that 

are necessary in the roads. 

What do you and Mr. Gidner think this Committee should do as 

an authorizing committee to try to continue to make recommendations to increase the funding opportunities for these roads? Do either of you have recommendations for the Committee? Mr. Gidner, 

I thought I heard you suggest that we not make significant changes 

at this point. 

Mr. GIDNER. I suggested we not make significant changes in the 

distribution formula until that entire process has sort of equalized, 

20

and then we can look at where the money is going and decide if 

that is equitable. 

As far as the amount of money, I think we all understand that 

the amount of money is insufficient to meet the unmet need in Indian Country. 

Mr. BAXTER. And from our perspective, I would suggest that this 

is a really appropriate time to have these discussions as we are 

heading into reauthorization over the next couple of years. This is 

an excellent opportunity to have those debates and discussions and 

formulate our positions as we go forward. 

The CHAIRMAN. Ms. Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

It was a couple of years ago we had a transportation conference, 

their annual conference in Anchorage, and I had an opportunity to 

address those assembled from all across the State. I asked for their 

assistance. I said, you know, I am sitting on the Indian Affairs 

Committee, and want to know how we can help you with your 

transportation issues. 

What I heard from those assembled from, whether it was Petersburg down in the southeastern part of the State or from those who 

reside far up north, was a great frustration in terms of how the 

funding was actually coming down to the tribes themselves, and 

the delays that they had encountered. 

The Petersburg Indian Association was a perfect example and 

case. They had basically been told that the moneys were on the 

way. They had worked with the community of Petersburg, the city 

of Petersburg was going to contribute jointly to the road project. 

The funding didn’t come. The funding didn’t come. The funding 

didn’t come. And so it caused some real problems within that community in terms of the promise that had been made that we are 

going to work on this jointly, and then we can’t get the money out. 

Now, the good news story on that is that the situation in Petersburg has been resolved, but it was resolved because it was brought 

to my attention at that meeting and we spent about a year with 

a little bit of Congressional intervention and pushing in order to 

break loose that funding. 

You are going to hear from the Seldovia Village Tribe here today 

that they, too, have been denied money that has been rightfully 

awarded to them. 

Why are the tribes coming to me and coming to those of us in 

Congress and telling us that the BIA is either unwilling or unable 

to part with the money that has been set aside for the Indian Reservation Roads programs? 

Mr. GIDNER. Well, I would first of all start by saying we certainly 

are not unwilling. Our mission is to move that money to the tribes. 

I am not familiar with the Petersburg example that you mentioned, 

so I can’t speak to the specifics of that. 

We have had some problems over the past couple of years. For 

one thing, we can’t move the money until we get it. This past year’s 

continuing resolution delayed——

Senator MURKOWSKI. This was a couple of years ago. Seldovia 

also I don’t think was caught in that same situation. 

Mr. GIDNER. OK. We are working very hard to try to streamline 

the process. We have developed for self-governance tribes a funding 

21

agreement template that can just be used with little or no negotiation, so that as soon as we get the money, it can be moved to the 

tribe. 

We have developed, in my office, a similar template for the selfdetermination tribes, which will be final and in use in the very 

near future. We are doing these things to try to simplify the process. We are well aware of the requirement of SAFETEA–LU that 

we move the money to the tribes within 30 days of our receipt of 

it. 

Senator MURKOWSKI. Are you able to do that? Are you able to 

comply with that? 

Mr. GIDNER. Not 100 percent this year, no. 

Senator MURKOWSKI. What causes that continued delay, then, in 

your opinion? 

Mr. GIDNER. Well, it is a combination of factors. One is we can’t 

get the money to the tribes until we have a contract with them. If 

we get the money on day one and a tribe hasn’t submitted a proposal to us for a contract, or we haven’t finished reviewing it and 

we haven’t finished negotiating it with the tribe, we can’t move the 

money until that contract is in place. 

That is not saying anybody is at fault in that, it is just that we 

can’t move the Federal money until there is a contract in place. We 

can do more as far as working in advance with tribes to make sure 

that we know what projects they intend to pursue, and we can 

have those contracts lined up. We can’t finish a contract until we 

know how much money they are going to get, and that can’t happen until the inventory is updated. 

So there are a number of dates and moving parts that have to 

come together to get the money to the tribe. We think that these 

templates are going to advance that. We have created a mechanism 

we think will work for the self-determination tribes to essentially 

treat the money up front as a pre-award amount of money and can 

get it to the tribe more quickly while we work out the details of 

the agreement. But the bottom line is, because of other statutes, 

the tribes still cannot use the money until there is a contract in 

place. 

Senator MURKOWSKI. How long does it typically take, would you 

say, to get a contract from the date of request to get the funding 

to the tribe? 

Mr. GIDNER. I am not sure I know exactly how long that takes. 

I would have to get that information from somewhere else. 

Senator MURKOWSKI. It sounds like that is probably the biggest 

hangup, is what you are saying. 

Mr. GIDNER. Well, it is one big hangup. We are trying to change 

that so it is not a hangup, but this year that can be an issue. 

Senator MURKOWSKI. Let me ask you about the inventory, because I have received many complaints that the regional offices are 

not receiving sufficient guidance from Albuquerque on what constitutes adequate inventory update. I know that within the Alaska 

region, we have tried to comply with the guidance that has been 

given, and what comes back is rejection after rejection. 

I notice in your written testimony you indicate that not all the 

tribes have updated their inventory, and that only about 25 percent 

of the 562 tribes have updated a significant portion of their eligible 

22

inventory. I can tell you that in Alaska, we are trying to do that, 

but we are not quite sure what those parameters might be. We get 

the rejection back, and it has been difficult to do those updates. 

Can you tell me whether we are making any progress in terms 

of giving that guidance to the tribes so that they can complete their 

inventory? 

Mr. GIDNER. I think we are making a lot of progress in making 

that process work better. I will acknowledge there have been some 

problems and there have been some rejections when there should 

not have been a rejection. That is true. We deal with that on a case 

by case basis as we hear about them. 

I do want to say for the Alaska region in particular, the amount 

of increase in roads and inventory has gone up by over 1,800 percent in the last 10 years, which is far in excess of the nationwide 

average of 23 percent. 

Senator MURKOWSKI. That is because ours weren’t counted in the 

first place. 

Mr. GIDNER. Well, that may be. I can’t speak to that, I am afraid. 

I should say the acceptance rate for Alaska currently is about 82 

percent. That means of the submissions that we get in, 82 percent 

of them go into the inventory. The remainder are rejected at some 

stage in the process for some reason. 

Senator MURKOWSKI. Let me ask Mr. Baxter a very quick question, and then I will turn it over to Senator Tester. 

One of the reasons that the Federal Highway Administration was 

charged by Congress to prepare this new inventory of the roads 

was that the tribes in Alaska didn’t perceive, didn’t feel that the 

inventory that had been prepared by BIA accurately portrayed the 

number of roads and the amount of roads in the State. What is 

Federal Highways doing to ensure that the new inventory that it 

is preparing will adequately represent the number of eligible road 

miles? Are you actually going out on the ground and counting? 

Mr. BAXTER. We are. We actually have three teams in Alaska 

this month and in August, looking at the inventory issues and 

working with BIA and the tribes to remedy some of those situations. So we are working that very closely and actually currently 

have teams in Alaska. 

Senator MURKOWSKI. Good. Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. 

Senator Tester? 

Senator TESTER. Thank you, Mr. Chairman. 

I don’t know who answers this question, either one of you can. 

It deals with a lot of the same stuff we have been talking about. 

Who assesses the adequacy in overall road conditions in Indian 

Country? Is it the Department of Transportation? BIA? Who does 

it? 

Mr. GIDNER. It may be a joint responsibility. On a day to day 

basis, it is the BIA. We maintain the backlog on road maintenance. 

It is our people working with the tribal people in the field who 

would have that data. 

Senator TESTER. OK. And so this contract that you talked about 

with Senator Murkowski, that includes deficiencies and overall 

road condition and need? 

23

Mr. GIDNER. I am sorry. I don’t understand. 

Senator TESTER. The contract that you talked about, you can’t 

distribute any money until the contract is signed. I would imagine 

that would contain things like overall road conditions. 

Mr. GIDNER. Well, knowing the overall road condition is not a 

precursor of the contract. The contract will include, if the tribe 

wants that contract, funds for road maintenance. 

Senator TESTER. OK. So it is strictly funding? 

Mr. GIDNER. Funding. 

Senator TESTER. And you have a template to determine how that 

is done? 

Mr. GIDNER. Right. 

Senator TESTER. Is a new contract required every year? 

Mr. GIDNER. Not necessarily. A lot of them go for several years. 

It depends. 

Senator TESTER. It depends on what? 

Mr. GIDNER. It depends on how the contract was written and the 

status of it. If it is a mature contract, it rolls over. There are administrative things we have to do, but if it is an ongoing contract, 

it is easier. I think where you might be going, it is easier to have 

a contract in place if it is an ongoing contract than one starting 

from scratch. 

Senator TESTER. OK. 

Mr. Baxter, you started your testimony by saying the mortality 

rate was four times higher than the national average. Why? 

Mr. BAXTER. I think there are a number of reasons. We had a 

good discussion with NHTSA at the last Indian Reservation Road 

Coordinating Committee, and they indicated to us that in Indian 

Country, seat belt usage is 55 percent, versus 81 percent nationally. 

The belt usage in Indian Country is 55 percent, versus 81 percent nationally, and that has an impact on fatality rates. DUI, the 

percentage of fatalities is 65 percent versus 40 percent nationally 

in Indian Country. A predominant issue with pedestrian fatalities, 

speed is an issue in Indian Country. 

So there are a number of factors. The rule of nature of fatalities, 

emergency medical response times, and obviously the condition of 

roads as well. 

Senator TESTER. All right. How many dollars are dedicated toward pedestrian needs? Is it a set sum? 

Mr. BAXTER. We have a national program for highway safety 

which actually was a major increase with SAFETEA–LU from 

about $650 million annually to $1.2 billion. Pedestrian safety is a 

part of that. It is not broken out separately as a different program 

funding category. 

Senator TESTER. OK. 

Mr. BAXTER. But those are national numbers. 

Senator TESTER. OK. You also stated that I think about one in 

four bridges were deficient, or 24 percent, somewhere around that 

neck of the woods. I assume you are using the same standards 

throughout the Country, whether you are in Indian Country or off 

Indian Country. 

Mr. BAXTER. Right. 

24

Senator TESTER. That means every fourth bridge that I drive 

over when I am in Indian Country is not sufficient. How does that 

rank with off Indian Country? 

Mr. BAXTER. I don’t have the number for the national bridges. It 

is a higher number than what we see in the rest of the system. I 

don’t have a specific number, though. 

Senator TESTER. If you could get that, I would be interested to 

know if it is double or quadruple or what it is. 

Mr. BAXTER. Yes, sir. 

[The information referred to follows:]

The following link provides a discussion of bridge deficiencies 

that is from the 2006 Status of the Nation’s Highways, Bridges, 

and Transit: Conditions and Performance report.

Senator TESTER. And like you said before, you are using the 

same standards. 

Mr. BAXTER. My understanding is that they do use the same 

standard to determine whether it is functionally obsolete or a deficient bridge. 

Senator TESTER. OK. So the question I have for you, Mr. Gidner, 

you talked about the budget, you talked about money that you are 

competing for that may have to go to police or a myriad of other 

issues. But when you have situations like the testimony that you 

gave and the testimony that Mr. Baxter gave, it would seem to me 

that, especially when you have energy prices that are going up, 

which has an incredible impact on maintenance costs, that you 

ought to be screaming, screaming, screaming. Even maintaining 

the budget is not adequate. 

I mean, we have testimony here that talks about the inadequacy 

of the roads and mortality rate and bridges and on and on we go. 

Are you told, are you directed by people above you to decrease the 

maintenance budget? 

Mr. GIDNER. The overall DOI and Indian Affairs budgets, of 

course, the final decisions are made by the Secretary and the Assistant Secretary. Within the targets we are given, we fight very 

hard for the priorities that we want. Ultimately, they are the ones 

who have to make the decision. 

Senator TESTER. So how much lower was the budget that actually got adopted than the budget you recommended for maintenance? 

Mr. GIDNER. For this year, within our discussions, road maintenance was not given much discussion. Well, let me back up. 

Senator TESTER. What I am saying is you must have come in with a figure. Let’s say it was $100. I want $100 to maintain all 

the roads. And they came back and said, no, you are going to get 

X amount, $50, $25? 

Mr. GIDNER. No, it didn’t quite work like that. We worked it out 

within the Bureau of Indian Affairs ourselves on priorities. Let me 

back up again. The Bureau of Indian Affairs is given a target and 

we are told, for this year you have to come in 2 percent, for example, below what you had last year. That is the target budget. The 

Bureau of Indian Education is given the same sort of direction. 


712extra.eps
25

So within that, we talked about road maintenance. We talked 

about the need for road maintenance. We were not able to get road 

maintenance increases proposed. 

Senator TESTER. Was 2 percent an accurate figure? You were told 

to come in 2 percent lower than the previous year? 

Mr. GIDNER. It was around 2 percent, 11⁄2 percent to 21⁄2 percent. 

Senator TESTER. OK. You know, in some cases you may be able 

to increase it 10 percent. In other cases, you might have to increase 

it 50 percent, because of maintenance issues, because of that first 

question I asked, and that is who assesses the condition of the 

roads. It seems to me that maintenance, there isn’t anything so 

critically important. I mean, you could lose the resource and then 

it costs you a whole lot more. 

Mr. GIDNER. It is, and within my jurisdiction, I have roads, I also 

have Indian children, and of course they are impacted by roads, but 

if I have to choose between suggesting more money for social workers to get children out of houses where they are being sexually 

abused versus more road maintenance, I will go with the children 

every time. 

Senator TESTER. OK. And I don’t mean to drag this on, Mr. 

Chairman. 

So what you are saying is the road budgets are in direct competition with battered and abused children. 

Mr. GIDNER. Yes, and lack of police officers. And everything else 

that we have to do. 

Senator TESTER. OK. Thank you very much. I appreciate your 

testimony. 

The CHAIRMAN. Senator Tester, your questions and the answers 

describe once again how desperately underfunded most of these accounts are. It is unbelievable to me. I was just saying to Senator 

Murkowski, the fact is, you should not, when you are driving 

around this Country in any State and drive onto an Indian reservation, you should not be able to see the difference in road quality. 

It ought to look the same, but it doesn’t, unfortunately. 

I remember driving from Comayagua to Tegucigalpa in Honduras 

and meandering all over the road trying to avoid all the potholes 

and all the problems. You drive in parts of this Country and drive 

onto an Indian reservation and you see Third World conditions 

with respect to their roads. 

Now, I don’t know what the labyrinth of programs are for road 

funding. I have most of them here on the charts. But all the talk 

in the world isn’t going to solve the problem. What we need to do 

is describe a circumstance where when you are driving in this 

Country, if you are on an Indian reservation, you shouldn’t be able 

to see the difference between the funding in the rest of that State 

for roads and the funding on that Indian reservation. 

This describes once again how desperately short of money we are 

to do what is necessary to provide for the basic infrastructure on 

these reservations. 

I know, Mr. Gidner, in response to Senator Tester’s question, you 

don’t make the final decision on these judgments. I understand and 

respect that, but we are trying to understand what is happening, 

what is the need, and how do we find new ways and new approaches to address the needs. 

26

Mr. Baxter, we had an Assistant Secretary position that we had 

authorized, a Deputy Assistant Secretary for Tribal Government 

Affairs under the Secretary of Transportation. So we tried under 

SAFETEA–LU to put in place something that would provide some 

focus and a spotlight on this issue, establish a Deputy Assistant 

Secretary for Tribal Government Affairs in DOT. And 2 years after 

the passage of the Act, there is nobody there. What is going on? 

Mr. BAXTER. Sir, Kerry O’Hare is the Deputy Assistant Secretary 

for Intergovernmental Affairs and is serving in that role. We understand that is a part-time position in the context of her other duties, and understand the issues that have been raised. 

The CHAIRMAN. But why after 2 years has that not been filled? 

Is that not a priority? 

Mr. BAXTER. Well, we do have that filled through this position. 

The CHAIRMAN. On an acting basis. 

Mr. BAXTER. Yes, sir. 

The CHAIRMAN. But why have you not filled the position that 

Congress authorized and established that position? Has the Secretary of Transportation not decided that this is a priority? 

Mr. BAXTER. It is a priority and we have filled the position 

through this interim position, but we certainly understand the concern that is being raised. 

The CHAIRMAN. I understand you understand it. I guess my question is, is the Secretary actively searching for someone to fill this 

position? Have they been doing that for 2 years or are they satisfied with the part-time occupant? 

Mr. BAXTER. I am not aware of the answer to that, but I can research that. 

The CHAIRMAN. Would you provide that to the Committee? 

Mr. BAXTER. Yes, sir. 

The CHAIRMAN. All right. 

[The information referred to follows:]

Kerry O’Hare, the Deputy Assistant Secretary for Intergovernmental Affairs, will 

continue to carry out the functions of the Deputy Assistant Secretary for Tribal Government Affairs position, in addition to her other duties. The Federal Highway Administration (FHWA) is committing significant resources to tribal issues. FHWA’s 

Federal Lands Highway program has five individuals dedicated to the Indian Reservation Roads (IRR) program and the Office of Policy and Governmental Affairs 

has one individual working full time on tribal issues.

Let me thank both of you for coming. You know, it is my intention to be terribly disappointed in the lack of funding and resources 

for our road programs. We have asked you to come and explain 

what is happening. We appreciate your willingness to do that. We 

understand that you are not Secretaries of the two agencies, but 

your explanation is helpful to us so that we can then put together 

some approaches that might be able to address and solve these 

problems. 

So I thank both of you for your time today and thank you for appearing before this Committee. Your entire statements will be 

made part of the permanent record. 

Mr. BAXTER. Thank you. 

Mr. GIDNER. Thank you, Mr. Chairman. 

The CHAIRMAN. Next, we will call panel two, and panel two will 

be the Honorable Don Kashevaroff, the President of the Seldovia 

27

Village Tribe in Seldovia, Alaska; Mr. Pete Red Tomahawk, the Director of Transportation, Safety and Road Maintenance, Standing 

Rock Sioux Tribe in Fort Yates, North Dakota; Mr. Erin Forrest, 

the Director of Public Works, Hualapai Nation, Peach Springs, Arizona; and Mr. James Garrigan, Transportation Planner at the Red 

Lake Band of Chippewa Indians of Minnesota in Red Lake, Minnesota. 

Let me begin in this order. I will first ask the Honorable Don 

Kashevaroff to testify, and then I will ask Mr. Pete Red Tomahawk, followed by Mr. Garrigan and then Mr. Forrest. 

Mr. Kashevaroff, thank you very much for being here. We will 

include the complete testimony that all of you have submitted. Mr. 

Tomahawk, I have read yours. It is extensive because you are 

chairman of the committee that is working on this for the tribes. 

But I would ask if each of you would try to summarize in about 

5 minutes. Your total testimony will be part of the permanent 

record, and then we will inquire. 

You may proceed. 

STATEMENT OF DON KASHEVAROFF, PRESIDENT, SELDOVIA 

VILLAGE TRIBE 

Mr. KASHEVAROFF. Thank you, Chairman Dorgan, and good 

morning to you and Vice Chairman Murkowski and the rest of the 

Committee. 

Thank you, first, for holding this hearing on transportation 

issues in Indian Country. It is a very important topic, even though 

there are other important topics in Indian Country that we need 

to address, too, as you heard earlier. But transportation needs are 

vast in Indian Country, and of course the Federal dollars are limited. We need to make the best use of what is available. 

In Seldovia, we have found that self-governance works. Through 

our healthcare system and our compacting with the Indian Health 

Service, we were able to redesign the healthcare system that was 

limited in resources—you ran out of money during the month 

under contract health care—to a system that we provide for everybody now. We don’t run out of money. Everybody gets better care. 

We are able to use the self-governance that we entered into to 

meet the needs of our people, to go out and ask and talk with the 

people to find out the unique situations they are in and accomplish 

our goals. 

So when we looked at the IRR, we decided to assume it under 

self-governance, based on our experience with the Indian Health 

Service and the success that we have had with the Indian Health 

Service. Maybe we naively went into it thinking that it will be just 

as successful and just as uncomplicated to achieve as the Indian 

Health Service. 

What we have done in the IRR program is we went out and 

found and looked at our situations. Seldovia is located south of 

Kachemak Bay, which is about 150 miles south of Anchorage. It is 

a beautiful little village. If you are ever in Alaska, please come and 

visit us. You will be amazed at how nice it is. 

We unfortunately have a 13 mile bay between us and the road 

to Anchorage. This bay is breached by ferry boats. The State ferry 

28

runs a couple of times a week, and by a lot of plane service, small 

Cessna 206s, one engine planes that go back and forth. 

Unfortunately, if the weather picks up at all, the planes are 

grounded and you are basically stuck in Seldovia for the winter—

a week or two sometimes if it starts snowing. So there are some 

fishing boats you can maybe catch a ride out if you need to. If you 

have to have a medevac for an emergency it is very hard to get the 

folks out of there if the weather is bad. 

So in looking at this situation and the fact that Seldovia, because 

of our lack of access, our economic development has been slowing 

down. My tribe runs a small jam and jelly business. The cost of 

shipping the sugar in and the jars in, and then packaging it and 

shipping it all back out is too expensive. We can’t actually compete 

with the folks just over at Homer. They can do it 20 cents a pound 

cheaper because they don’t have that extra freight added on, even 

though they do have a cost of freight. 

Access to jobs—we have a lot of folks that don’t live there any 

more because of the jobs, even though we have a lot of jobs available. We decided that what we needed was a daily ferry system, 

such as they have down in the Seattle area and many other places 

in the Country, that you could have pretty much a for-sure way of 

getting back and forth across the bay. It is only 13 miles. It doesn’t 

take very long, but even if the weather picks up, a ferry boat can 

handle it and people are used to the weather up there anyway on 

the water. 

So we assumed the IRR program into our self-governance, that 

we have had with the BIA, with the idea that could take it in, design the best ferry—we are doing a design-build on the ferry—and 

we are well underway. We started a couple of years ago, and everything had gone good until we started negotiating our agreement 

with BIA. We found out that the bureaucratic system of delivering 

funds to us has caused a setback in achieving our outcome. It has 

been kind of hard to do. 

First off, in our agreement we negotiated, it took over 9 months 

to negotiate the compact, an addendum with BIA, even though we 

have already compacted with them before. That was kind of inexcusable. We kind of presented it to them, and they took their time. 

It took about 9 months. When we finally got an agreement, it was 

before the end of the Fiscal Year. They never gave us the money. 

They instead sent it back to Federal Highways, saying it is too late 

in the year, even though it was only in August. 

So the next year comes around and we go to get our money this 

time, and they said, oh, your agreement is no longer valid. You 

need a new agreement. So we said, OK, we will. That was kind of 

weird because I had an agreement saying we will get this money, 

and we are not getting it. 

So we just changed the date and sent it back in, and they said, 

oh, no, no. Those agreements are not good anymore even though 

you already have an existing agreement. We need to have a template agreement. Templates are fine, but they really lose the government-to-government relationship that we enjoy on many of the 

other fronts, such as the Indian Health Service. 

So to make a long story short on that, we still haven’t gotten our 

money. We have signed an agreement. Two years have gone by. 

29

Not only have we lost interest, but the cost of building a ferry has 

gone up substantially in 2 years. We are hoping that somewhere, 

sometime we are going to get some funding and try to get our ferry 

project going again. 

Some of the other problems that we have is the BIA not giving 

out or meeting the 30 day deadline for distributing IRR funds. The 

problem, as you heard earlier there, is that they just don’t do it. 

It is not that the tribe is sitting around saying, oh, we won’t do our 

contract until the money arrives, so we are not going to get our 

money. No, the tribes are out there getting the contracts as soon 

as possible. It is BIA sitting on their hands and knees and waiting 

for a long time before the money gets here finally, just to respond 

to us. By then, we are never going to get that 30 days. 

The tribes want the money. We are not the ones causing the 

problem. There is somebody to blame, and it is not the tribes. We 

need to get the money as soon as possible. 

Some of the problems I just mentioned, it is just the whole idea 

of making you have a new agreement when you already had one. 

It is silly. We need to have the amendments to Title IV that have 

been proposed. We need to have those type of things implemented. 

We need final offer provisions in our self-governance agreements 

with the BIA, such as we have with IHS, in order to have some 

teeth behind what we are trying to propose. Right now, the BIA 

can just stall us as long as they want to and there is not much we 

can do. 

I know that the Federal Highways can now do contracts, which 

is good. My understanding from a couple of tribes in Alaska is that 

they pay on time, which is great. We have not chosen to go that 

way because those contracts, even though Congress has said they 

should be using the ISDEAA, they are not. They are missing several key components. They say right in their contracts in the footnotes that they disagree; that they shouldn’t be using the Indian 

Self-Determination. 

By doing that, we are missing some things such as tort coverage, 

meaning that we have to buy extra insurance to cover the projects 

we are doing under IRR. That is kind of silly and is wasteful, too. 

For such a shortage of money, they should just say we are going 

to adopt the ISDEAA program. 

One other issue we have was the population data. We found out 

that BIA actually counts the population based on HUD. They don’t 

go out and count them themselves. They use the HUD formulas. 

Well, the HUD formulas don’t recognize BIA compacts. They don’t 

recognize the service areas that we provide in. They just recognize 

Alaska Native statistical village areas, which we are not quite sure 

where those come from. I guess the census department dreams 

them up. 

So we have HUD using one formula, BIA using another formula, 

IHS doing a very good job of compacting. What we need is some 

consistency across the agencies in the department and Federal 

Highways. They need to all be using the same system or the same 

Indian Self–Determination Act, and they are not doing that. 

So what I am hoping this Committee can do is give some guidance to the executive branch of the Federal Government to actually 

treat tribes the way they are supposed to be. Instead of trying to 

30

stop tribes from being successful, they should be promoting tribes 

and getting them the money as fast as possible. They shouldn’t 

have any reasons not to get money to the tribes. 

Thank you very much. 

[The prepared statement of Mr. Kashevaroff follows:]

PREPARED STATEMENT OF DON KASHEVAROFF, PRESIDENT, SELDOVIA VILLAGE TRIBE

Good morning Chairman Dorgan and Members of the Committee on Indian Affairs. It is an honor to appear before you this morning. My name is Don Kashevaroff 

and I am President of the Seldovia Village Tribe located on Kachemak Bay on the 

Kenai Peninsula in Southcentral Alaska. I also chair the Seldovia Native Association, Inc., an ANCSA corporation with land, resource and tourism ventures. While 

this is my first opportunity to testify on tribal transportation matters, I have testified before this Committee on the Indian Health Care Improvement Act in my capacity as Chairman and President of the Alaska Native Tribal Health Consortium, 

which provides health, sanitation and health facilities and other services for 125,000 

Alaska Natives. I also chair the IHS Tribal Self Governance Advisory Committee 

and co-chair the IHS National Budget Formulation Committee. 

I regret the circumstances under which this hearing was postponed. Please allow 

me to express my condolences to the family of Senator Thomas, his friends, colleagues and staff. We recognize and appreciate his service to his state and to the 

Nation. 

The transportation needs of our communities are vast. The resources available, 

while growing, fall far short of what is necessary. Fortunately, over the past 30 

years of implementation of the Indian Self-Determination Act and nearly two decades of Self-Governance, we have learned that by placing responsibility for addressing those needs in the hands of Alaska Native and American Indian tribal governments we can stretch those dollars to provide exceptional services with limited resources. 

The Seldovia Village Tribe has assumed the Indian Reservation Roads (IRR) Program under its self-governance agreement with the Secretary of Interior. We took 

this step based on a conclusion we reached after many years of health care administration: self-governance works. Under self-governance, Seldovia reformulated the 

way health care was being delivered. We were aware of our community needs and 

fine tuned our programs by listening carefully to community concerns. We make 

funding go further by tailoring services to the unique conditions of our small rural 

Alaska community. By proper design, we provide needed services locally using innovative approaches sustained by diversifying the resources available to our programs—for instance, not just IHS, but other Federal agencies, state agencies and 

private partners. The result has been better care for our members and for non-Native residents of our region. 

Using the program design skills Seldovia has developed in the health field, we 

have developed a transportation program suited to the unique circumstances of our 

community and the Kachemak Bay region. This experience has culminated in the 

development of a land and water based transportation system. In addition to the 

IRR Program for roads, Seldovia has designed the Kachemak Bay Ferry Program 

and through numerous discussions with State and local transportation departments, 

with our congressional delegation and with the FHWA and BIA, we have developed 

a transportation program that will benefit not only the Seldovia Village Tribe but 

also the entire region. We believe the process will provide lessons that will benefit 

tribes nationwide. 

First, let me offer some context. Seldovia is located on the Southern end of 

Kachemak Bay and does not have road access to the state highway system. We currently access the state road system via the twice weekly State Marine Highway 

Ferry to the town of Homer (service in winter months is once a week). In this respect we have limited access to the hospital, medical clinics, pharmacies, college, 

and other services available in Homer. Freight costs for food are excessive. If you 

visit the area, the rich natural resources suggest economic opportunity. Unmet 

transportation needs, however, undermine viability of economic development. 

To offer economic opportunity, access to jobs, and to provide for public health and 

safety and tourism, we decided to design and construct a daily ferry. The Kachemak 

Bay Ferry Program will not be used to carry hundreds of cars or require a large 

crew with the high cost of operation associated with the state highway system ferries. Rather, a smaller ferry providing daily freight and passenger service to five underserved communities will be administered under the Seldovia Ferry Authority and 

31

operated by a four member crew to provide frequent and affordable access between 

communities. 

As we learned through our direct administration of our health programs, effective 

transportation service delivery depends upon the ability to build a solid system from 

diverse resources. In the transportation arena, this calls for using our IRR Program 

funds for appropriate road improvements related to the ferry system. Meanwhile, 

we have sought and obtained funding from other Federal transportation programs, 

including the Public Land Discretionary Program, the Ferry Boat Discretionary 

Fund, and SAFETEA–LU High Priority Projects. 

While Seldovia has been successful in designing an innovative program responsive 

to our local needs and in obtaining support from Federal, state and local authorities, 

inefficiencies in the Federal bureaucratic system for delivering program funds have 

caused setbacks in achieving our planned outcomes. Let me briefly mention some 

of these and offer some recommendations to the Committee. 

The Need for Mechanisms Through Which FHWA and Other DOT Agencies 

May Provide Funding to Indian Tribes 

For more than 2 years now, the BIA and FHWA have been unable to deliver $3.7 

million in funding vitally needed for our ferry construction program. This experience 

shows not only flaws in BIA and FHWA administrative systems for delivering program funds but also that tribes’ options for receiving Federal transportation funds 

are limited when the funding comes from outside the IRR Program. Seldovia had 

been awarded FY 2005 funding under the Federal Lands Highway Discretionary 

program. Yet, FHWA could not issue the funding directly to Seldovia, rather these 

funds could be transferred to Seldovia only through the State of Alaska or through 

BIA. 

Seldovia opted for BIA, given that we had an existing self-governance agreement 

with BIA in place, which included the IRR Program. FHWA notified BIA of funding 

availability for the Kachemak Bay Ferry project and several other tribal projects on 

June 24, 2005. Seldovia prepared our self-governance ferry addendum and on November 10, 2005, requested negotiations, which were held on December 1, 2005. The 

agreement was not finalized, however, until August 30, 2006. With the fiscal year 

coming to a close, BIA, rather than transferring all ferry funds allocated to Seldovia 

in accordance with that addendum, returned those funds to FHWA. In order to have 

those funds transferred, Seldovia sent five letters to BIA and FHWA since January 

16, 2007, has held frequent face-to-face, telephonic and email exchanges with Federal officials, and has had to negotiate a new ferry addendum, which was not signed 

until July 2, 2007. 

We have been assured that these funds will be transferred in the coming days. 

Since May 2007, when OSG Director Sharee Freeman became directly involved in 

reviewing Seldovia’s documents, the process has showed some improvement but 

much more needs to be done. These delays are unacceptable and should not be tolerated. Just counting the period since the Ferry Addendum was signed last August, 

Seldovia has been deprived of nearly a year’s worth of interest, let alone the lost 

opportunities to advance efforts in the construction process. I have been assured by 

other tribes in Alaska and other self-governance tribes, as well as those tribes that 

were awarded Public Lands Highway Discretionary Funds that these delays are not 

unique to the Seldovia ferry. 

Recommendation: Seldovia Village Tribe believes that legislation must be enacted 

as soon as possible that clearly and unambiguously authorizes DOT agencies, including FHWA to enter into ISDEAA agreements—including compacts of self-governance—for the direct transfer of funding to tribes. I discuss this recommendation 

in more detail below. 

Failure to Meet 30-day Deadline for the Distribution of IRR Program Funds 

and the Need to Adopt Self-Governance Amendments containing Final 

Offer Provisions 

The extensive delays in distributing Federal transportation funding are not limited to the ferry project. Seldovia has still not received our FY 2007 IRR Program 

funding, nor have most other tribes that have assumed the program under Self-Governance agreements even though, by statute, BIA has 30-days from the time funds 

become available from the FHWA to distribute those funds to tribes. This year, that 

30-day deadline expired in mid-May. Now, 90 days later, tribes are still waiting for 

our IRR funds. 

For tribes carrying out IRR Program activities under self-governance agreements, 

these delays may come to an end soon. For those tribes carrying out IRR Program 

activities under self-determination contracts, however, further delays are expected. 

32

I refer the Committee to the testimony of Pete Red Tomahawk, which thoroughly 

addresses those self-determination contract Issues. 

At a symptomatic level, the problem for self-governance tribes stems from agency 

mishandling and delays with the so-called ‘‘template’’ agreements. The problem, 

however, goes deeper: to the inadequacy of the negotiating process that BIA has implemented under Title IV of the Indian Self-Determination Act. But first, let me address the IRR ‘‘template’’ issue. 

At the request of the Self-Governance Advisory Committee (SGAC) and upon 

agreement of Acting Assistant Secretary Jim Cason during the annual self-governance conference in May 2006, a Federal-tribal workgroup formed to prepare a ‘‘template’’ FY 2007 IRR Program Addendum that would guide Federal and tribal negotiators on terms for assuming the IRR Program under tribes’ self-governance funding agreements. 

That workgroup submitted a proposed template for agency review a year ago, in 

July 2006. The BIA provided a marked up version to the workgroup in January 

2007. After review by the workgroup and IRR Program Coordinating Committee 

workgroups, and discussions with Federal officials, a revised workgroup version was 

produced in late March with the intent of producing a final version during the Coordinating Committee meeting in April 2007. During the April 23, 2007 meeting of 

the workgroup and BIA officials, the BIA rejected not only the tribal changes in the 

March 2007 draft, but reversed itself on several of its own positions from its January 2007 comments. A final ‘‘template’’ agreement was not approved and circulated 

by the agency until May 31, 2007. 

The delays in the ‘‘template’’ process should be of concern to this Committee, to 

tribes and the agencies. More disconcerting, however, is how this ‘‘template’’ process 

has turned the Indian Self-Determination Act on its head. For FY 2007, Seldovia 

and many other tribes sought only to renew their funding agreements from prior 

years, without material changes to the scope or funding of the program. Indeed, 

when tribes submitted proposed FY 2007 IRR Addenda with all terms identical to 

their executed FY 2006 Addenda (except the calendar dates), they were advised by 

agency representatives that those proposals would be delayed (if accepted). They 

were instructed to resubmit new Addenda based on the ‘‘template’’. 

Rather than providing negotiating guidance, the ‘‘template’’ became a set of nonnegotiable terms and a format binding on all tribes. Renewal of agreements previously reached by the United States and the Seldovia Village Tribe under the Indian Self-Determination Act through government-to-government negotiations was 

rejected outright. Faced with the threat that the agency would delay yet again the 

distribution of IRR Program funding on which our program depends, we adopted the 

terms and format of the FY 2007 Addendum. 

Recommendation. The process failures of the FY 2007 IRR Addendum provides 

further evidence as to why this Committee needs to enact up the amendments to 

Title IV of the ISDEAA as rapidly as possible. Among other things those amendments include Final Offer provisions that will provide tribes with the option of making a final offer in negotiations that the agency must respond to within a specific 

timeframe or have the final offer deemed approved. As the development of ‘‘template’’ agreements this year has demonstrated, tribes need legislative mechanisms 

to ensure that Congress’ intentions in the ISDEAA are properly carried out in the 

face of Federal intransigence and delay. 

FHWA Program Agreements, the ISDEAA, and the Need to Expand the 

ISDEAA to Other DOT Agencies 

The Committee has long been aware of the BlA’s problems administering the IRR 

Program in accordance with the ISDEAA. In 1998 Congress clarified the applicability of the ISDEAA to the IRR Program. SAFETEA–LU also went one step further 

and authorized FHWA to enter into direct agreements with tribes ‘‘in accordance 

with the ISDEAA.’’ This language reflects Congress’ intent for tribes to have the discretion to assume IRR Program and funding directly from the FHWA without having to proceed through BIA utilizing the provisions of the ISDEAA. Unfortunately 

FHWA has not read this provision in this manner and has only agreed to agreements with Tribes that do not include many of the core concepts that the ISDEAA 

addresses. 

First, let me talk about some tribe’s success in contracting directly with the 

FHWA. As Pete Red Tomahawk’s testimony stresses and as the Chickaloon Village 

in Alaska has explained to me, entering into a relationship directly with the FHWA 

can be positive. Indeed, although both tribes’ IRR Program funding distribution is 

from the same pool of funds authorized, appropriated and allocated by formula 

under the IRR Program regulations, unlike those of us working with the BIA, tribes 

with FHWA agreements apparently receive their funds in a timely manner. 

33

1See 23 U.S.C. § 101(a)(12); see also 25 C.F.R. § 170.5 [69 Fed. Reg. 43090, 43106 (2004)]. 2See 69 Fed. Reg. 43,090 (2004) (stating that the IRR system is comprised of 25,000 miles 

of BIA and tribal roads, and 38,000 miles of state, county and local government roads). During 

the Alaska Tribal Transportation Conference in October 2006, BIA Division of Transportation 

Engineer Sheldon Kipp reported that the FY 2006 IRR consisted of 32,000 miles of BIA and 

tribal roads and 53,000 miles of state and county roads. 3 Indian Reservation Roads, Proposed Rule, 67 Fed Reg. 51328, 51333 (2002) (emphasis 

added). 4 Although this limitation to BIA-owned roads was BIA policy, in Alaska some state routes 

were included in the IRR Inventory prior to the Final Rule, and are still in the inventory. This 

was due to an appropriations rider by which Congress required the BIA to use its 1993 ‘‘Juneau 

Area Plan,’’ a planning document, as the basis for the Alaska IRR Inventory. The Area Plan 

included projects identified by the tribes regardless of ownership. State routes included in the 

inventory at that time were simply treated as BIA routes. 5 67 Fed. Reg. at 51333–34. 

However, the contracts that these tribes have entered into come with serious disadvantages from my perspective: they include footnotes indicating FHWA does not 

interpret the SAFETEA–LU-authorized agreements to incorporate important 

ISDEAA terms intended to enable tribes to make their share of Federal funding go 

further. Indeed, those footnotes express FHWA’s interpretation that its IRR Program Agreements are not Indian Self-Determination Act agreements. This FHWA 

position raises a number of significant concerns. For example, an immediate concern 

for a program whose primary purpose is roads construction, this interpretation, if 

correct, will jeopardize applicability of the Federal Tort Claims Act (FTCA), which 

Congress extended to tribes and their employees carrying out ISDEAA Agreements. 

As Seldovia’s experience with the Kachemak Bay Ferry program has shown, tribal 

transportation needs and opportunities extend well beyond the IRR program. Tribes 

need the clear ability to rely on the ISDEAA to contract or compact directly with 

DOT-agencies, including, for example, the Federal Lands Highway Program (FLH), 

Federal Transit Administration (FTA), National Highway Traffic Safety Administration (NHTSA), and Federal Aviation Administration (FAA). 

Recommendation. Congress needs to enact legislation that makes it absolutely 

clear that tribes can utilize the ISDEAA as a vehicle to contract or compact directly 

with all DOT agencies. 

The Need for IRR Program Funding Formula Data to Accurately Reflect 

Need 

A. Inventory Data for IRR Routes Eligible to Generate Funding 

Indian Reservation Roads are public roads located within or providing access to 

Indian reservations or ‘‘Indian and Alaska Native villages, groups or communities 

in which Indians and Alaska Natives reside.’’ 1 The Bureau of Indian Affairs (BIA) 

maintains a national database of such routes, the ‘‘IRR Inventory,’’ which is used 

for the allocation of IRR funds and also determines where IRR funds can be used. 

State and county-owned roads comprise the majority of road miles within the IRR 

system. Indeed, over the past 2 years, the significant expansion of the IRR inventory 

has been fueled by the addition of state and county road miles at a substantially 

greater rate than that of Bureau of Indian Affairs (BIA) and tribal routes. 2

By statute, all IRR Program funds must be allocated to tribes in accordance with 

the funding formula established by regulation. 23 U.S.C. § 202(d)(2)(A). The Final 

Rule implementing the IRR Program established the statutorily mandated formula 

that must be used to allocate IRR Program funds among tribes. See 25 C.F.R. Part 

170, Subpart C. 

The funding formula adopted in the IRR Program Final Rule reflected Congress’s 

intent that the funding distribution method ‘‘balance the interests of all tribes and 

enable all tribes to participate in the IRR Program.’’ 3 That balancing of interests 

called for avoiding substantial reallocations from the larger tribes while still addressing the central problem that had historically left smaller tribes out of the program: that the prior formula distributed funds based on an inventory limited to 

roads built and owned by the BIA. 4 The new formula broadened tribal participation 

by allowing the inclusion of state, county, and municipally owned IRR-eligible facilities in the inventory so that ‘‘actual IRR transportation needs [may] be counted for 

funding purposes.’’ 5 Alaska’s tribes promoted this change in the funding formula 

and were among the new formula’s intended beneficiaries. 

Now under the IRR Program regulations, formula data with respect to roads 

owned by public authorities other than the BIA or tribes are computed only at the 

34

6See 25 C.F.R. Part 170, Subpart C, Appendix C(lO); see also 25 C.F.R. § 170.223 (noting that 

Subpart C explains how the formula is derived and applied). 7 25 C.F.R. Part 170, Subpart C, Appendix C(10)(3). 

local matching share rate (for Alaska, 9 percent). 6 However, the IRR regulations explicitly offer an exception whereby inventory data from non-tribal, non-BIA-owned 

routes may be counted at their full (100 percent) value: when a ‘‘public authority 

responsible for maintenance of the facility provides certification of its maintenance 

responsibility and its inability to provide funding for the project.’’ 7 State certification is not required for a tribe to include a state-owned route in the IRR inventory 

for the purpose of generating funding at the non-Federal matching rate. However, 

the state must provide certification of maintenance responsibility and the inability 

to fund a project if a state-owned route is to be computed at 100 percent of its cost 

to construct (CTC) and usage (Vehicle Miles Traveled, VMT). 

State governments and their transportation departments have recognized that by 

certifying their inability to provide funding for IRR-eligible roads in their respective 

states the IRR Program can generate more funding overall for transportation improvements in that state. As a result, many states routinely submit statements, letters or enter into agreements certifying such routes for the IRR inventory that generate funding at the 100 percent level. The State of Alaska has refused to do this, 

thereby limiting the ability of tribes to add state routes to their inventory for the 

purpose of generating funds. The State’s approach is prejudicial to the tribes, adversely affects overall levels of transportation funding available to Alaska and undermines the intent of the IRR Program regulations. This year, Alaska has agreed 

to provide certification, but it is not yet clear whether BIA has accepted the form 

of certification Alaska has provided. 

Recommendation. The Committee should encourage BIA to promote an equitable 

approach to resolving this Alaska certification issue in a manner consistent with the 

terms of the IRR Program regulations. 

B. Population Data 

Through negotiated rulemaking, tribes and the Federal Government agreed to an 

equitable funding formula that would enable all tribes to participate in the IRR Program. The fairness of that formula, however, depends upon the accuracy of the data 

used to calculate relative need. As the BIA and FHWA contemplate revisions to the 

IRR Program regulations, mechanisms, including the data appeals process need to 

be established to ensure accuracy of data underlying the funding formula. 

For Alaska tribes, the funding formula’s population component is inherently inaccurate due to its use of the American Indian and Alaska Native Service Population 

(developed by the Department of Housing and Urban Development (HUD)). In Alaska, HUD uses ‘‘Alaska Native Village Statistical Area’’ to determine a tribe’s service 

population. Yet, a tribe or the BIA may provide housing services to members beyond 

that ‘‘statistical area’’ (as the Supreme Court addressed in Morton v. Ruiz, Indians 

living in an Indian community near a reservation are eligible for BIA social service 

programs). Seldovia’s Compact with the Secretary of Interior defines our tribe’s 

‘‘Near Reservation Service Area’’ to include our members in the Town of Homer as 

well as Seldovia and outlying areas. HUD, however, has refused to count these 

members as part of our Tribe’s service population, and rejected our formal administrative appeal to correct that population count. In rejecting our appeal, HUD chose 

not to accept the terms of our self-governance funding agreement as adequate to establish a ‘‘near-reservation’’ service area for purposes of the NAHASDA formula regulations. Rather, HUD issued a determination that the entire state is a service area, 

and that since there are no ‘‘reservations’’ in Alaska, Seldovia is a tribe without a 

reservation. Thus, our near-reservation service area, though recognized by Compact, 

does not exist for HUD. 

Furthermore, the data appeals provisions of the IRR Program regulations (25 

C.F.R. 170.231) contain several drafting problems that have undermined the intent 

and the utility of this appeals process. The drafting flaws in these sections of the 

regulations have been identified by the IRR Program Coordinating Committee and 

a Federal BIA workgroup as requiring technical correction. Such a correction will 

not likely be in place for another year or more. 

Recommendation. Congress must exercise oversight authority to assure that the formula data used to allocate IRR Program funding are accurate. Congress should ensure that IRR Program regulation revisions correct the unfair use of HUD data to 

determine tribal population and that data appeal provisions provide appropriate procedures that allow tribes to correct inaccurate data contained in the IRR Program 

inventory in a timely manner. 

35

Conclusion 

I hope my comments this morning lead to productive action to improve the delivery of transportation services to Alaska Native and American Indian communities. 

I welcome your questions and look forward to continuing to work with you on these 

critical issues.

The CHAIRMAN. Thank you very much for your testimony. 

Next, we will hear from Pete Red Tomahawk. He is of the Standing Rock Tribe. He is the Standing Rock Sioux Transportation Director, but he has also been the twice-elected Chairman of the Indian Reservation Roads Program Coordinating Committee, which is 

a tribal advisory body established by the BIA. 

So Mr. Tomahawk, thank you very much for being with us today. 

We appreciate your work. 

STATEMENT OF PETE RED TOMAHAWK, TRANSPORTATION

DIRECTOR, STANDING ROCK SIOUX TRIBE; CHAIRMAN,

INDIAN RESERVATION ROADS PROGRAM COORDINATING 

COMMITTEE 

Mr. RED TOMAHAWK. Thank you, Mr. Chairman and Members of 

this Committee. My name is Pete Red Tomahawk. I am the Transportation Director for the Standing Rock Sioux Tribe and twiceelected Chairman of the IRR Coordinating Committee. I have 

worked in the transportation field for over 20 years. 

I am honored to be here today. I want to thank you, Mr. Chairman, and this Committee for granting our letter of request for an 

oversight hearing on tribal transportation issues in Indian Country. 

But before I get into that, Mr. Chairman, I want to express my 

condolences and the condolences of the Standing Rock Sioux Tribe 

to the family of Senator Craig Thomas and to this Committee. I 

was saddened to hear of the death of this admired man. Cancer has 

touched me and my family. Both of my brothers, Wilbur and I are 

cancer survivors. I have the highest respect for Senator Thomas’s 

dedicated public service to the people of Wyoming and to this 

Country. He will be missed. 

I am proud that the Chairman of the Senate Indian Affairs Committee is the North Dakota tribes’ Senator. I thank you for supporting over 560 federally recognized Indian tribes and promoting 

Indian self-determination. You are a good friend of the Indian 

tribes, as is this Committee and its hard-working staff. I want to 

thank you and Congress for the passage of SAFETEA–LU and the 

funding increases you included for the IRR program. 

The BIA road system is primarily a rural road system that is 

owned by the U.S. Government. What rural Indian communities 

need to succeed are safe roads that connect our communities, and 

roads that provide access to the national transportation system, 

and continuing the good working relationships tribes are building 

with State DOTs to ensure that State transportation improvement 

programs, the STIPs, reflect the transportation needs of Indian 

Country. 

It is working well, Mr. Chairman. I commend this Congress and 

this Committee for promoting tribal-state consultation and coordination regarding transportation in SAFETEA–LU. 

36

I want to begin by sharing some tribal successes made possible 

by Congress when it included provisions in SAFETEA–LU that 

benefited Indian tribes. Today, Indian tribes are taking greater responsibility for transportation planning, design, construction and 

road maintenance thanks to improvements Congress included in 

SAFETEA–LU, partnering with State Departments of Transportation and local governments on road construction projects, receiving their first tribal transit grant, working with tribal TERO offices 

to employ native labor to provide jobs in Indian Country; using innovative financing techniques to build and reconstruct, safe roads 

and community streets; and assuming the duties of the United 

States for the IRR program by contracting directly with the Federal 

Highway Administration as the Standing Rock Sioux Tribe has 

done. 

Indian tribes are achieving these successes even though we operate on shoestring budgets. Tribes carry out identical transportation 

functions as States and local governments, yet have only a fraction 

of the resources. Indian tribes also achieve success by overcoming 

BIA’s stubbornness, wedded to outdated practices. 

I will cover just two of my written recommendations: road maintenance and road safety. Congress must link road maintenance 

with road safety. Road maintenance and road safety go hand in 

hand. Poor road maintenance is a silent killer. If tribes don’t have 

adequate funds to maintain our roads, native people will continue 

to be killed or injured in traffic and pedestrian accidents in numbers well above the national average. 

Invest in BIA road maintenance programs. The funding increases 

for the IRR program are working. More tribes are building more 

roads thanks to the increases Congress authorized in SAFETEA–

LU. 

On the other hand, the funding level of $26 million for the BIA 

road maintenance program is a national disgrace. Lack of proper 

road maintenance contributes to the appalling highway fatality statistics in Indian Country. I urge Congress to target Federal resources to where the need is greatest. Congress should increase 

funding for the BIA road maintenance program to at least $150 

million annually. 

The $26 million budgeted for the BIA road maintenance program 

is wholly inadequate. The majority of the funds in the BIA road 

maintenance program pay salaries. Very little is left for supplies 

and equipment. Tribes which choose to assume the BIA road maintenance program are forced to supplement it with tribal resources, 

and are now using up to 25 percent of their IRR program construction dollars to subsidize the BIA road maintenance program. 

The Administration’s use of the Program Assessment Rating Tool 

(PART) to justify reductions in funding for the BIA road maintenance program is misplaced. The PART evaluation of the BIA Road 

Maintenance Program shows that States and counties neither construct nor maintain routes serving Indian reservations. 

So tribes must use what resources they have to patch and repair 

deteriorating roads. Highway fatalities and injuries in Indian 

Country document the need for more, not less, funding for the BIA 

Road Maintenance Program. A 1999 study estimated that the average annual cost to maintain a gravel road was $4,160 per year for 

37

grading, resurfacing, including re-graveling. If Congress appropriates $4,160 for only the 34,885 miles of BIA and tribally owned 

roads included in the IRR program inventory, it would need to appropriate $145 million annually for the BIA Road Maintenance 

Program. In 1999, diesel gas was $1.40 per gallon. Today, it is over 

$3.00 per gallon. 

If I leave you with one message today, Mr. Chairman, it is prevention. Congress cannot appropriate the millions of dollars needed 

to address all of the transportation needs of Indian Country, but 

I am asking Congress to make tribes directly eligible for highway 

safety programs that could make a difference in Indian Country. 

My recommendations for improving traffic safety in Indian Country 

are for Congress to create a 2 percent set-aside for tribes in the 

High-Risk Rural Road Program. Make tribes direct recipients of 

Safe Routes to School and Highways for LIFE Programs; provide 

funding to improve school bus routes in Indian Country; establish 

an Indian Reservation Road Safety program for Federal Lands 

Highway offices within the Department of Transportation, and 

fund it at $50 million to reduce the incidence of native deaths and 

injuries; make grant applications simple and easy to fill out so that 

more tribes apply for the funds. 

Make the BIA reorganize the BIA Indian Highway Safety Program. That office is not working as it should. Tribes appreciate the 

increased funding Congress included in SAFETEA–LU for this program, but the BIA Indian Highway Safety Program has not coordinated nor consulted with Indian tribes and tribal organizations 

such as the Intertribal Transportation Association, ITA, NCAI, and 

the IRR Program Coordinating Committee regarding traffic safety 

in Indian Country. The National Highway Traffic Safety Administration and the BIA must ensure that this important BIA program 

works and promotes ‘‘best practices’’ in Indian Country. 

My written testimony lists the appalling statistics that show that 

Native Americans suffer injury and death driving and walking 

along reservation roadways at a rate far above the national average. Motor vehicle injuries are the leading causes of death for Native Americans ages 1 through 34 for the Aberdeen, Billings, and 

Navajo areas, and had motor vehicle-related death rates at least 

three times greater than the national average. 

On a personal side, Mr. Chairman, I lost my niece, my brother 

Wilbur’s eldest daughter Nickie Red Tomahawk in a rollover accident 16 years ago. She wasn’t wearing a seat belt. She was thrown 

from the car and died at the scene. She was 19. Unfortunately, I 

have not been able to shield other families from the grief my family 

has endured. I was asked by a gentleman, who is paying you to do 

this, Mr. Red Tomahawk, in looking at the advocacy for prevention? My comment was, if I could prevent one family from enduring 

the emotions that we have suffered due to this crash in taking our 

niece and our daughter, all the successes that we have done in prevention are worth it. 

There is no ‘‘golden hour’’ on Indian reservations. Traffic fatalities and injuries take a terrible toll in Indian Country. We can prevent a serious accident through greater education, greater law enforcement, sobriety checkpoints, seat belts and child restraints, betVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\37860.TXT JACK PsN: JACKF
38

ter engineered roads, and increased funding for emergency medical 

services. 

As you are well aware, Mr. Chairman, there is no golden hour 

coming from a rural town in a rural community which lack vehicles, staff, and training and supplies. These are the four E’s. If 

Congress targets resources for these programs, Indian Country will 

see a decrease in what can only be described as alarming statistics. 

In conclusion, Indian tribes are making gains in transportation, 

but there is so much more tribes could do to improve the condition 

of Indian reservation roads if the resources were there. This is a 

health and safety issue. We are losing lives and suffering injuries 

and measures needs to be taken to prevent this great loss and 

drain on our limited tribal resources. 

I invite this Committee and its staff to come out to Indian Country and see what tribes have accomplished and what challenges 

still remain. I invite this Committee to also attend the meetings of 

the IRR Program Coordinating Committee to see how tribal representations are working to improve transportation programs in Indian Country. 

Thank you, Mr. Chairman, and this Committee for inviting me 

to testify this morning. 

[The prepared statement of Mr. Red Tomahawk follows:]

PREPARED STATEMENT OF PETE RED TOMAHAWK, TRANSPORTATION DIRECTOR, STANDING ROCK SIOUX TRIBE; CHAIRMAN, INDIAN RESERVATION ROADS PROGRAM

COORDINATING COMMITTEE

I. Introduction 

Good morning Mr. Chairman and Members of the Committee on Indian Affairs. 

My name is Pete Red Tomahawk. I am the Standing Rock Sioux Transportation Director. I am the twice-elected Chairman of the Indian Reservation Roads (IRR) Program Coordinating Committee, the Tribal advisory body established in 2005 by BIA 

regulations for the IRR Program to provide advice to the BIA and Federal Highway 

Administration (FHWA) regarding the IRR Program. I am also the Chairman of the 

Northern Plains Tribal Technical Assistance Program which represents 26 Tribes in 

North Dakota, South Dakota, Wyoming, Montana, and Nebraska, and the Native 

American Injury Prevention Coalition which distributed thousands of child car seats 

donated by Ford Motor Company to Indian families. I am also the former Co-Chairman of the joint Tribal-Federal Transportation Equity Act for the 21st Century 

(TEA–21) Negotiated Rulemaking Committee which drafted the BIA’s regulations 

for the IRR Program before they were finalized by the Department of the Interior. 

I have worked in the Tribal transportation field for over 21 years. 

I want to express my condolences and those of the Standing Rock Sioux Tribe to 

the family of Senator Craig Thomas and to this Committee. I was saddened to hear 

of the death of this admired man. Cancer has touched me and my family. Both my 

brother Wilbur and I are cancer survivors. I have the highest respect for Senator 

Thomas’ dedicated public service to the people of Wyoming and to this country. He 

will be missed. 

The Standing Rock Sioux Reservation straddles North and South Dakota. We 

have approximately 11,000 enrolled members, more than 2,500 miles of Indian Reservation Roads and a land base of 2.3 million acres. The Lewis and Clark Trail runs 

through the Communities of Cannon Ball, Fort Yates, Kenel and Wakpala, four of 

our eight districts. The Standing Rock Sioux Tribal Council and our Chairman, Ron 

His Horse Is Thunder, recognize the importance of transportation infrastructure as 

a key to our Tribe’s future economic and social well being. 

The Tribe is working with other transportation stakeholders, the States of North 

Dakota and South Dakota, county governments and the Federal Government, to improve our transportation system. For that reason, the Tribe has assumed responsibility for the Secretary of the Interior’s IRR Program duties under an historic agreement with the FHWA as authorized by the Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users (SAFETEA–LU). In May 2007, the 

Tribal Council elected to assume the Secretary’s duties for the BIA Road MainteVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
39

1S. Rep. No. 100–274, 100th Cong., Sess., p.4. 

nance Program which the Tribe will carry out under an Indian Self-Determination 

Act (ISDA) contract beginning in FY 2008. 

II. Key Recommendations to Improve Tribal Transportation Policies 

Nearly 20 years ago, this Committee introduced legislation to overhaul the Indian 

Self-Determination Act. The legislation, which became P.L. 100–472, recognized the 

growing capability of Tribes to assume control over Federal programs. The Indian 

Self-Determination Act empowered Indian Tribes by transferring control to the 

Tribes and providing them the financial resources to succeed. The same thing must 

happen in the field of transportation. What this Committee said in 1987 is true in 

2007:

‘‘The conditions for successful economic development on Indian lands are essentially the same as for any other predominantly rural community. There must 

be community stability, including adequate law enforcement and judicial systems and basic human services. There must be adequate infrastructure including roads, safe water and waste disposal systems, and power and communications utilities. When these systems are in place, Tribes are in the best position 

to implement economic development plans, taking into account the available 

natural resources, labor force, financial resources and markets.’’ 1

Our key recommendations to Congress and the Federal agencies to improve transportation policies in Indian country generally, and for the IRR Program in particular, which I elaborate upon more fully in my testimony, are as follows:

1. Fund the IRR Program for the next reauthorization in installments that increase annually by at least $25 million from $475 million in FY 2010 to $600 

million in FY 2015, and restore the obligation limitation deduction exemption 

that existed for the IRR Program under the Intermodal Surface Transportation 

Efficiency Act of 1991 (ISTEA); increase funding for the IRR Bridge Program 

from $14 million to $50 million in the next reauthorization with increases of at 

least $10 million annually;

2. Increase funding for the BIA Road Maintenance Program to at least $150 

million annually to promote traffic safety and to ensure that the Federal and 

Tribal investment in transportation infrastructure is maintained;

3. Enforce the statutory requirement in SAFETEA–LU which mandates that 

the BIA must make IRR Program funds ‘‘immediately available’’ for the use of 

Indian Tribes within 30 days of the BIA’s receipt of the funds from the FHWA;

4. Simplify the award process by which Federal transportation funds are distributed to Indian Tribes by creating uniform grant eligibility, application, and 

administration criteria;

5. Develop model funding agreements for use by the Department of the Interior 

and the Department of Transportation to facilitate the efficient transfer of 

transportation funding and program authority to Indian Tribes;

6. Insist that the BIA and FHWA complete the comprehensive national transportation facility inventory update authorized in SAFETEA–LU to properly document all Tribal transportation facilities and to protect the integrity of the IRR 

Program funding formula;

7. Encourage the President to fill the position of Deputy Assistant Secretary for 

Tribal Government Affairs established under SAFETEA–LU;

8. Increase the number of Department of Transportation programs which Tribes 

may participate in as direct funding recipients from the Federal Government 

rather than as sub-recipients through the States (e.g., Safe Routes to Schools 

Program, High Risk Rural Roads Program, and the Highways for Life Program);

9. Establish a Federal Lands Highways Safety Program for Indian Reservation 

Roads, establish a Tribal set aside for the High Risk Rural Road Program, and 

increase funding for the Federal Transit Administration’s (FTA) Tribal Transit 

Grant Program to $50 million annually;

10. Increase funding to the successful Tribal Transportation Assistance Programs (TTAPs) to at least $2.5 million annually to increase technical training 

and promote awareness in Indian country of ‘‘best practices’’ in transportation 

planning, design, construction, maintenance, and highway safety measures;

11. Promote the use of innovative financing techniques in standard Indian SelfDetermination contracts and self-governance compacts to provide Tribal governments with better tools to reduce their road construction backlog; and

40

12. Carry out right-of-way reform in Indian country to reduce costs and expedite 

the design, construction and reconstruction of Tribal roads and bridges.

The Indian Reservation Roads Program is predominantly a rural roads program. 

Congress should invest in highway and surface transportation projects in rural 

areas as well as metropolitan areas. If rural America and Indian country are to 

prosper, there must be rural connectivity and reliable access to the national transportation system. 

III. Tribal Transportation Successes 

Indian Tribes have achieved many successes in the transportation field over the 

last several years. More than ever before, Tribes are working in partnership with 

local government and State departments of transportation on mutually beneficial 

projects. With the enactment of SAFETEA–LU, Tribes are working on a government-to-government basis with the Federal Highway Administration (FHWA) and 

the BIA to improve transportation systems in Indian country. Indian Tribes have:

• taken greater control of transportation programs: five Indian Tribes, including 

the Standing Rock Sioux Tribe, negotiated historic IRR Program and funding 

agreements with FHWA, as authorized under SAFETEA–LU, to assume the 

Secretary of the Interior’s duties for the IRR Program;

• assumed the authority to approve PS&E (plans, specification & estimate) packages, thereby maintaining better control over construction scheduling and cost;

• used the authority under SAFETEA–LU to allocate up to 25 percent of their 

annual IRR Program allocation for road maintenance needs to maintain Tribal 

infrastructure built with IRR Program funds;

• witnessed the joint Federal-Tribal initiation of SAFETEA–LU’s Tribal Transit 

Grant Program which was a model of government-to-government relations. The 

Federal Transit Administration (FTA) consulted with Indian Tribes, responded 

favorably to Tribal recommendations, received applications from nearly 100 Indian Tribes, and awarded over 60 transit grants to eligible Tribal recipients in 

FY 2007;

• collaborated with Members of Congress and FHWA Administrator Capka to successfully reverse an FHWA policy that would have prevented Tribes from being 

eligible sub-recipients of SAFETEA–LU’s Safe Routes to Schools Program 

grants. Tribal access to these funds will permit Tribes to contract with States 

to promote, develop and improve safe walking and bike routes to schools for elementary and middle-school children;

• collaborated with States on comprehensive highway safety and transportation 

and land use plans (NDDOT and Standing Rock), worked on cooperative ventures to improve traffic crash reporting on Indian reservations (SDDOT and the 

State’s Indian Tribes); and jointly worked on construction, employment and materials testing (Eastern Shoshone and Northern Arapaho Tribes and Wyoming 

DOT);

• partnered with State DOTs on IRR Program highway projects funded through 

the Public Lands Highway Discretionary Grant Program which brings additional capital to Indian country by financing projects that otherwise could not 

be built by Tribal governments from other funding sources;

• instituted safety measures such as the child restraints and reduced infant and 

child deaths, cutting these rates dramatically; and

• brought third-party lenders to Indian country to help Tribes finance road construction projects which have saved Tribes money that would otherwise be consumed by inflation and additional mobilization expenses.

Indian Tribes celebrate these successes, and they want to see them repeated 

throughout the country. These examples can serve as ‘‘best practices’’ in transportation planning and government-to-government cooperation. Tribal governments are 

better positioned today to tackle problem areas in Tribal transportation than ever 

before, and they can save lives by intelligent planning, better design, implementing 

highway safety programs and conducting regular road maintenance and periodic 

road safety audits. 

We just need adequate resources and sensible Federal transportation laws, regulations, and policies which aid, rather than hinder us, in getting the job done. 

IV. Indian Reservation Roads Are Not Safe Roads 

Despite this progress, we need Congress and the Administration to partner with 

Tribal governments to dramatically reduce highway injuries and fatalities that 

plague Indian communities at rates several times above the national average. My 

41

2 ‘‘Transportation Planning on Tribal Lands,’’ Melissa Savage, National Conference of State 

Legislatures, August 2006, p.1. 3 ‘‘Safety Belt Use Estimate for Native American Tribal Reservations,’’ National Highway 

Traffic Safety Administration, DOT HS 809 921, Final Report, October 2005, p. 1. 4 Id.

5 Center for Disease Control, Injury Center, Atlas of Injury Mortality Among American Indian 

and Alaska Native Children and Youth, 1989–1998, Executive Summary (www.cdc.gov/ncipc/

pub-res/AmericanlIndianlInjurylAtlas/05Summary.htm). 6 ‘‘Improving Motor Vehicle Crash Reporting on Nine South Dakota Indian Reservations,’’ 

South Dakota Department of Transportation, June 2007. 7 Id.

grandchildren live on the Standing Rock Sioux Reservation. I want them and all Native American children to have a safe and healthy future. We must do more to keep 

them safe when they walk to school, ride a bus, or jump into their parents’ cars 

and trucks. We must educate them early to buckle up and not to drink and drive 

so that when it is their turn to get behind the wheel, they will be responsible drivers. Tribal communities must also change bad behaviors and set a good example for 

our youth. 

Congress and the Administration must also do their parts. Tribes are struggling 

to find the funds necessary to meet the tremendous transportation needs in Indian 

Country. Congress and the Administration must recognize that Indian Tribes have 

the most rudimentary transportation infrastructure in the country and lack the 

funds needed to maintain roadways in a safe condition. Tribal transportation programs have too few personnel to attend to required activities. 2 Indian Tribes should 

be treated as equal partners. The significant progress Tribes have made in the last 

two decades to assume direct responsibility for their transportation systems should 

be applauded and rewarded by giving Tribal governments the financial resources 

they need to build and maintain safe roads and save lives. Transportation planning, 

design, construction, and maintenance are not occasional occurrences, and Tribal 

governments must have the resources they need to carry out this core governmental 

function. No one else can do it better than the Tribes themselves. 

Adequate funding levels are needed if we are to design safer roads with features 

such as guard rails, rumble strips, clearly visible signs, reflective markers, and 

wide, level shoulders. We must increase law enforcement patrols to enforce traffic 

laws and respond to accidents more quickly. We must provide adequate Emergency 

Medical Services and associated medical facilities so that prompt medial assistance 

is available to the injured within the critical ‘‘golden hour’’ after an accident. And 

we must adequately maintain routes in Indian country so that poor road maintenance does not continue to be a major contributing factor to traffic accidents in Indian country. Poor road maintenance is a silent killer that preys on the distracted 

mother, the sleep-deprived father, the inexperienced son or daughter, and the aunt 

or uncle who drive while impaired. 

A. Grim Statistics 

Our future goals, for safe, well maintained streets are clear, but the present reflects a grim reality. Native Americans suffer injury and death driving and walking 

along reservation roadways at rates far above the national average.

• Motor vehicle injuries are the leading cause of death for Native Americans ages 

1–34, and the third leading cause overall for Native Americans; 3

• The motor vehicle death rate for Native Americans is nearly twice as high as 

other races; 4 motor vehicle crashes were the leading cause of death among Native Americans age 1 to 19, and the Aberdeen, Billings, and Navajo Areas had 

motor vehicle-related death rates at least three times greater than the national 

rates; 5

• Native Americans in South Dakota are three times more likely to be killed in 

a motor vehicle accidents than the rest the of State’s non-Native population; 

from 2001 to 2005, over 25 percent of individuals who lost their lives in traffic 

accidents in South Dakota were Native American even though Native Americans comprise only 8.3 percent of the State’s population; 6

• The South Dakota Department of Transportation (SDDOT), working with ICF 

International, Inc., Interstate Engineering, Inc., and the State’s Indian Tribes, 

in a recently published report, found that 737 accidents (or 64 percent of all 

motor vehicle accidents) on nine reservations in South Dakota in 2005 were not

reported; 7

• 123 North Dakotans were killed in traffic accidents in 2005, an increase of 23 

percent over 2004; 4,360 North Dakotans were injured. Eighty-eight percent of 

42

8 ‘‘North Dakota Vehicle Crash Facts for 2005,’’ North Dakota Department of Transportation, 

Crash Facts (www.nd.gov/dot/dlts.html). 9 ‘‘Fatal Motor Vehicle Crashes on Indian Reservations 1975–2002,’’ National Center for Statistical Analysis, National Highway Traffic Safety Administration, DOT HS 809 727, Technical 

Report, April 2004, p. 1. 10 Id. 11 Id., p. 2. 12See ‘‘Race and Ethnicity in Fatal Motor Vehicle Traffic Crashes 1999–2004,’’ National Center for Statistics & Analysis, DOT HS 809 956, Technical Report, May 2006, p. 14. 13 ‘‘Safety Belt Use Estimate for Native American Tribal Reservations,’’ NHTSA, DOT HS 809 

921, October 2005, p. 1. 14 ‘‘Pedestrian Safety in Native America,’’ FHWA–SA–04–007 Technical Report, September 

2004. 15 ‘‘Fatal Motor Vehicle Crashes on Indian Reservations 1975–2002,’’ p. 2. 

the fatal accidents in North Dakota occurred in rural areas (nearly 9 out of 

every 10 fatalities );

• According to estimates by the National Safety Council, the economic cost in 

2005 for each fatality in terms of lost wages, medical expenses, administrative 

expenses, motor vehicle and property damage, and employer costs, exceeded 

$1.14 million for each life lost and over $50,000 for every person injured. In 

2005, for North Dakota alone, those figures translate to a cost of nearly $360 

million for the State’s 123 traffic fatalities ($140.2 million) and 4,360 traffic injuries ($218 million); 8

• 5,962 fatal motor vehicle crashes were reported on reservation roads between 

1975 and 2002 with 7,093 lives lost. The trend is on the increase, up nearly 25 

percent to over 284 lives lost per year in the last 5 years of study; 9

—76 percent of the fatalities were not seat belt or child safety seat restrained 

compared to 68 percent nationally; 10

—Since 1982, 65 percent of fatal crashes occurring on reservations were alcohol related compared to 47 percent nationwide; 11

• According to information presented by the Michigan Tribal Technical Assistance 

Program (Michigan Technological University), nearly three-quarters (73 percent) of Native American children under age 5 who died in traffic accidents 

were not in a child safety seat. Less than 7 percent were wearing a seat belt. 

More than half of these fatalities could have been prevented if these children 

had been restrained; 12

• NHTSA data shows that approximately 3 out of every 4 fatalities on Indian reservations were not restrained at the time of the motor vehicle accident. In 2002, 

only 16 percent of motor vehicle fatalities on reservations were restrained; 13

and 

• American Indians have the highest rates of pedestrian injury and death per 

capita of any racial or ethnic group in the United States. 14

These statistics are shocking and bear witness to the consequences of maintaining 

the status quo concerning Federal Tribal transportation policies. I am troubled by 

the disparity between national traffic safety statistics and the statistics coming out 

of Indian country. According to the National Highway Traffic Safety Administration 

(NHTSA): ‘‘The Department has made transportation safety its highest priority. The 

Secretary has mandated an ambitious DOT-wide safety goal to reduce the traffic fatality rate to no more than 1 fatality per 100 million vehicle miles traveled (VMT) 

by the end of 2008.’’

We have over 11 million VMT in the IRR Program inventory, yet the average 

number of Native Americans killed in motor vehicle accidents annually throughout 

NHTSA’s 28-year study was 213. While the number of fatal crashes in the Nation 

during the same period declined 2.2 percent, the number of fatal motor vehicle 

crashes per year on Indian reservations increased 52.5 percent. 15

If Tribal governments, the Departments of the Interior and Transportation, and 

State DOTs are to reverse the traffic fatality rates among Native Americans, Congress will need to direct more resources to the many factors that contribute to highway fatalities than are presently available. Many traffic accidents that occur on reservation roads can be prevented through application of the four ‘‘Es’’:

1. Education; 

2. Enforcement; 

3. Engineering; and 

4. Emergency Medical Services.

43

16 National Conference of State Legislatures, p. 2. 

B. Invest in Prevention 

If I leave you with one message today, Mr. Chairman, it is ‘‘prevention.’’ As much 

as I wish it, Congress will not appropriate the billions of dollars needed to redress 

all the unmet transportation needs in Indian country in next year’s appropriations 

acts. But I am asking Congress to identify and fund those preventative measures 

that Federal, State and Tribal governments can take to reverse the consequences 

of years of neglect of Tribal transportation infrastructure, as well as to help us curb 

the societal behaviors which contribute to making Indian reservation roads the most 

dangerous roads in America. 

But it must be a combination of resources to reconstruct and repair unsafe roads, 

provide law enforcement, emergency medical services, and educate Native American 

communities to make highway safety a priority. Any one component alone, without 

the support of the other components, will not be as effective. 

I speak from experience regarding the damage that traffic fatalities cause to Tribal families. My niece Nickie (Nicole) Red Tomahawk, my brother Wilbur’s eldest 

daughter, was killed 16 years ago in an automobile accident on the Reservation. She 

lost control of the SUV she was driving. It rolled over. She was thrown from the 

vehicle and died at the scene. 

Nickie was 19. She had a bright future ahead of her: college, a job, marriage, and 

children. She would be 35 years old today with her own family. The accident is still 

fresh in our families’ mind. Every day our family prays to the Great Spirit for her. 

People ask me why I am so insistent on safety. If I can prevent a single motor 

vehicle fatality and save another family from experiencing the tragic loss we experienced then we are all successful. I believe in the four Es and want to share highway 

safety measures and road safety awareness with every Tribe. From 1996–2005, however, 71 residents of the Standing Rock Sioux Reservation were killed in motor vehicle accidents. It was the number one killer on our Reservation. 

I now turn to the specific recommendations to improve the delivery of transportation services in Indian country. 

V. Recommendations to Improve Federal Transportation Policies in Indian 

Country 

Tribes are assuming greater responsibility for transportation planning, design, 

construction and maintenance. TEA–21, SAFETEA–LU, and the IRR Program regulations have created additional opportunities for Indian Tribes to interact with State 

Departments of Transportation on mutually beneficial transportation projects, to negotiate road maintenance agreements with State governments that prolong the useful life of IRR-financed routes without the approval of the Interior Secretary, to conduct long range transportation planning, hire their own engineers to finalize PS&E 

packages, and consult with Metropolitan Planning Organizations and Regional Planning Organizations on long-term transportation planning goals. Mr. Chairman, we 

must encourage these partnerships so that consultation is the norm and all governments work to achieve mutually agreed-upon transportation goals. This can be the 

future of the Indian Reservation Roads Program if Congress and the Administration 

will take the following actions: 

1. Increase Funding for the IRR Program in the Next Highway Reauthorization Bill 

to Meet Tribal Transportation Needs of the 21st Century 

The backlog of unmet transportation construction needs in Indian country is in 

the tens of billions of dollars. It hinders economic development, education, and the 

delivery of housing and health care to millions of Native Americans who reside on 

Indian reservations simply because it raises the cost of doing business on Indian 

reservations. Infrastructure should be a Tribal resource, but it is not. It is a hazard. 

It is not exceptional for Indian Tribes to operate one- and two-person transportation departments. At Standing Rock, I and my assistant comprise the entire 

Transportation Department. While State Departments of Transportation, city and 

county governments and Metropolitan Planning Organizations (MPOs) are staffed 

with engineers and other professionals to plan transportation projects and work 

with stakeholders to prioritize transportation projects, Tribal governments do not 

have comparable resources to operate complimentary transportation programs. 16

Until the Federal agencies request and Congress appropriates more resources, Tribal governments will always be playing ‘‘catch up’’ with their State and local government counterparts. Indian country cannot be expected to rectify our physical transportation infrastructure needs if we do not also have the financial resources to propVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00047 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
44

17 ‘‘AGC’s Construction Inflation Alert,’’ Reported by AGC Chief Economist Ken Simonson, 

September 2006, http://www.agcak.org/akancasn/doc.nsf/files/7DBB5CEFBE545B13872571 

FF0080B299/$file/AGCsConstructionInflationAlert.pdf. 18 Id., p. 2 19 Id. 20 ‘‘Road Safety Audit for Improvements to Standing Rock Sioux Tribe Reservation Roads,’’ 

Hamilton Associates, October 2005, pp. 10–11. 

erly staff and operate Tribal government departments to be capable of coordinating 

with our Federal, State and local government counterparts. 

According to data compiled by the Associated General Contractors of America 

(AGC), since 2004 the construction industry has been hit by a series of significant 

price increases impacting a variety of basic construction materials. It was AGC’s estimate that a ‘‘realistic inflation target for construction materials appears to be 6–

8 percent, with periods of 10 percent increases quite possible.’’ 17 These cost increases outpaced consumer and producer price indices significantly. According to the 

AGC report, for the 12 months ending August 2006, the cost of inputs for highway 

and street construction was up 13.8 percent, the producer price index (PPI) for 

‘‘other heavy construction’’ was up 10.3 percent, and the index for non-residential 

buildings was up 8 percent. 18 The report noted that: ‘‘The highway construction 

index is driven to a greater degree than the building construction indexes by the 

cost of steel bars... and plates (for bridges), ready-mixed concrete, asphalt, and 

diesel fuel, all of which have experienced double-digit cost increases in the past 12 

months.’’ 19

Congress authorized $450 million for the IRR Program for FY 2009. If Tribes are 

to maintain the positive gains made in TEA–21 and SAFETEA–LU and keep up 

with construction inflation which is running into double digits in many BIA Regions, 

we respectfully request that Congress authorize funding increases to the IRR Program in the next highway reauthorization bill of at least $25 million annually, combined with the restoration to the IRR Program of the obligation limitation exemption which existed prior to TEA–21. These funding increases for Indian reservation 

roads are the absolute minimum needed to keep up with inflation, let alone meet 

the growing needs of Indian country. 

Congress must sustain and continue its commitment to improving transportation 

infrastructure on Indian reservations if the gains of the last few years are to be 

maintained. This commitment will spur economic development on Indian reservations more than any other single Congressional action. 

2. Increase Funding for the BIA Road Maintenance Program Within the Interior and 

Related Agencies Appropriations Act 

Funding for the BIA Road Maintenance Program is a national disgrace. The Administration’s use of the Program Assessment Rating Tool (PART) Performance 

Measurements to justify annual reductions to the BIA Road Maintenance Program 

is shortsighted and fails to protect these valuable taxpayer-funded infrastructure investments. The Office of Management and Budget’s road budget makes no economic 

sense and squanders taxpayer money. Failing to adequately budget for the BIA 

Road Maintenance Program also violates Federal law. 

When, in SAFETEA–LU, Congress authorized Tribes to spend up to 25 percent 

of their IRR Program dollars for maintenance, Congress expressly stated that:

‘‘The Bureau of Indian Affairs shall continue to retain primary responsibility, including annual funding request responsibility, for road maintenance programs 

on Indian reservations. The Secretary [of Transportation] shall ensure that [IRR 

Program] funding made available under [section 204(c) of Title 23] for maintenance of Indian reservation roads for each fiscal year is supplementary to and 

not in lieu of any obligation of funds by the Bureau of Indian Affairs for road 

maintenance programs on Indian reservations.’’

23 U.S.C. § 204(c), as amended. 

The opposite of what Congress intended in SAFETEA–LU is occurring. As funding 

for the IRR Program goes up as authorized under SAFETEA–LU, the Administration submits budgets to Congress to reduce funding for the BIA Road Maintenance 

Program. Newly built or reconstructed roads must be maintained if they are to meet 

their design life and provide safe passage for people, goods and services. 

Poorly maintained roads in the Dakotas have cracks from frost heave, rutted 

pavement from tire wear, prairie dog damage and faded and worn pavement markings. These compromised conditions contribute to traffic accidents by degrading the 

pavement surface and can contribute to a driver losing control in snow or rain and 

at high speeds. 20

45

The BIA Road Maintenance Program is so poorly funded that there is no allowance for even emergency road maintenance needs to address life threatening circumstances that result from a ‘‘catastrophic failure or natural disaster.’’ As stated 

in the IRR Program regulations, examples of emergency maintenance include ‘‘ice 

and snow control, traffic control, work in slide areas, repairs to drainage washouts, 

retrieving hazardous materials, suppressing wildfires, and repairing the ravages of 

other disasters.’’ 25 C.F.R. § 170.812. Every BIA Region experiences emergency road 

and bridge maintenance needs yet lacks the resources to respond to them. 

The following table illustrates the see-saw funding levels for the BIA Road Maintenance Program since 1980.

In recent years, the BIA Road Maintenance Program budget, as a percentage of 

the IRR Program appropriation for the same year, has fallen below 10 percent. In 

1990, Congress appropriated $30.598 million which represented 37.7 percent of the 

combined maintenance and construction budgets. But by 2000, road maintenance as 

a percentage of available maintenance and construction funding had fallen to 9 percent and funding dropped to $26.437 million. 

At its high watermark fifteen years ago, in 1992, the BIA Road Maintenance Program received $41 million and accounted for 25.7 percent of the combined road 

maintenance and construction appropriation allocation for the IRR Program. According to data in the Roads Inventory Field Data System (RIFDS), between 1996 and 

2006, the IRR Program inventory grew nearly 74 percent, from 49,132 miles to 

85,454 miles. If the Administration’s FY 2008 funding request for the BIA Road 

Maintenance Program is approved by Congress, Road Maintenance funding will fall 

to $26 million, or 6.1 percent of total maintenance and IRR Program construction 

funds, its lowest percentage level in over 56 years. 

To spend six cents of every dollar on road maintenance when other public authorities spend many times that amount does not protect the investment which the 

Unites States and Indian Tribes have made in transportation infrastructure. This 

funding gap also exacerbates the backlog of unmet construction need by cutting the 

useful life of roads in half and will lead to more traffic injuries and fatalities. The 

lack of adequate road maintenance funding hinders every other form of financial assistance to Indian country, thus making it more difficult for the United States and 

Indian Tribal governments to achieve their stated Indian policy goals. 


712toma.eps
46

21See OMB’s Program Assessment Rating Tool Performance Measurement for the BIA Road 

Maintenance Program (2004)(www.whitehouse.gov/omb/expectmore/detail/l0002352.2004.html). 22 Id. 23 Id.

a) The PART Performance Measurement of the BIA Road Maintenance Program 

Misses the Mark 

The Administration’s PART Performance Measurement acknowledged that state 

and county governments provide more resources per mile than the BIA. It noted 

that the majority of the BIA road system (2⁄3 of the system) is unimproved and earth 

surface (dirt) and, ‘‘therefore, requires far more extensive methods to maintain for 

public use.’’ 21 The PART evaluation of the BIA Road Maintenance Program concedes that: 

‘‘The problem is (1) local public entities are refusing to use their HTF [Highway 

Trust Funds] funding to reconstruct their roads/bridges when they have met 

their design life, forcing Tribes to redirect their IRR HTF funding to reconstruct 

these roads/bridges; and (2) local public entities do not maintain their roads 

adequately requiring these roads/bridges to be reconstructed more frequently. 

This results in ineffective use of BIA road maintenance resources and Tribal 

HTF resources.’’ 22

Is it any wonder that the BIA Road Maintenance Program is scored by OMB as 

not demonstrating results? But rather than recognizing that the poor performance 

ofthe BIA Road Maintenance Program is due in large part to insufficient funding, 

and requesting additional funding to address this problem, the Administration has 

used the poor PART Performance Measurement as a justification for seeking less

funding for the BIA Road Maintenance Program. Recognizing that under Administration policies, funding is tied to the PART Assessment, the IRR Program Coordinating Committee, in January 2007, asked the BIA to have officials responsible for 

the PART Performance evaluation of the BIA Road Maintenance Program to brief 

the Committee on the evaluation, and identify ways to improve the Program’s rating. The BIA has been unresponsive and this briefing still has not occurred.

It is the United States’ statutory obligation under SAFETEA–LU and other Federal laws to maintain the IRR Program system of roads. Common sense dictates 

that if taxpayer dollars are used to finance a public road in Indian country, the 

United States should also ensure that funds are adequate to ensure that the full 

useful life of the public road is met. Are not the roads over which millions of Native 

Americans and others travel each day just as important to the Federal Government’s trust responsibility to Tribal resources as the land over which the roads lie? 

The authority granted Indian Tribes in SAFETEA–LU to use up to 25 percent of 

their annual IRR Program funds for maintenance purposes does not excuse the Interior Department of its statutory and moral obligation to keep IRR Program roads 

safe and adequately maintained. 

b) Indian Reservation Roads Cost More to Maintain But Receive Less 

In January 2007, the Coordinating Committee provided BIA officials with statistics (Caterpiller Performance Handbook, 1999) that showed that the typical 5-year 

cycle maintenance costs for a gravel road—the predominant road type in Indian 

country—is $4,160 per year per road mile for grading, resurfacing, and re-graveling. 

To demonstrate how bad the shortfall in maintenance funding is, if Congress appropriated the 1999 estimate of $4,160 for the 34,885.3 miles of just the BIA- and 

Tribally-owned routes now included in the BIA’s RIFDS, made no adjustment for inflation, and excluded funding for routes owned by States, counties, townships, etc., 

and appropriated an additional $20 million to maintain the approximately 1,200 

BIA- and Tribally owned bridges included in the IRR Program inventory (which represent only 27.5 percent of the 4,301 IRR Bridges), the Road Maintenance Program 

budget would be $165.122 million for FY 2008 ($145.122 million + $20 million). The 

Administration’s FY 2008 Road Maintenance request of $26 million is only 15.75 

percent of the $165.122 million figure.

The road maintenance funding estimate I have proposed excludes any funding to 

maintain routes and bridges now included in RIFDS which are owned by public authorities other than the BIA and Tribes. But, as noted by OMB, many of these roads 

are being and frankly must be maintained by Tribal governments in order to provide critical access to Tribal communities. 23 In fact, as of today, there are 86,759 

miles in RIDFS (51,873 miles of non-BIA and Non Tribally owned routes) and 4,301 

bridges, owned by both Federal, Tribal, State, county, township, and other State 

subdivisions. 

47

24 ‘‘Transportation Serving Native American Lands,’’ TEA–21 Reauthorization Resource Paper, 

BIA (May 2003), p. 32. 

If Tribes and the Federal Government invest taxpayer dollars to build and reconstruct roads in Indian country, it makes sense to adequately maintain these routes 

to improve their useful life. If pennies are spent on road maintenance, dollars will 

need to be spent on road reconstruction, and many more dollars on the societal cost 

of traffic fatalities and injuries. 

NCAI and many Tribal leaders, including Standing Rock Sioux Chairman Ron His 

Horse Is Thunder, have requested at least a $100 million funding level for the BIA 

Road Maintenance Program. The BIA has acknowledged that it requires at least 

$120 million to annually maintain BIA-owned roads and bridges, $50 million per 

year for bridge rehabilitation and replacement, and $100 million per year for upgrading and expanding transit services and systems. 24

Given the stark statistics discussed above, we respectfully request that Congress 

appropriate at least $150 million for the BIA Road Maintenance Program to maintain IRR Program roads and bridges to a minimally adequate standard. 

3. The BIA Must Comply with SAFETEA–LU’s Mandate to Distribute Available IRR 

Program Funds For the Use of Indian Tribes Within 30 Days of Receipt of the 

Funds 

One of the biggest problems I have witnessed in the operation of the IRR Program 

is the unnecessary delay by the BIA in distributing IRR Program allocations among 

the 12 BIA Regions and, from these Regional Offices, to the Tribal governments that 

have chosen to contract the IRR Program and BIA Road Maintenance Program 

under the ISDA. Congress was clear in SAFETEA–LU when it amended the law to 

require that:

‘‘Not later than 30 days after the date on which funds are made available to 

the Secretary of the Interior under [section 202 of Title 23] funds shall be distributed to, and available for immediate use by, the eligible Indian Tribes, in 

accordance with the formula for distribution of funds under the Indian reservation roads program.’’

23 U.S.C. 202(d)(2)(E)(i) 

The reality is that the BIA does not distribute IRR Program funds within 30, 60, 

or even 90 days of receipt from the FHWA. On the one hand, the BIA claims that 

it cannot transfer the IRR Program funds until it has self-determination contracts 

or self-governance compacts in place, and on the other hand, it has dragged its feet 

in finalizing mutually acceptable model funding agreements. It cannot have it both 

ways. 

Contrary to this statute, each August, BIA Regions return tens of millions of dollars of IRR Program funds to BIA Headquarters because these funds were received 

too late in the fiscal year, while Tribes are practically begging for construction 

funds. Short construction seasons mean that priority road projects do not get built 

and the cost for building roads in Indian country continues to outpace funding. 

The failure by the BIA to develop acceptable ISDA model contracts and Annual 

Funding Agreement addenda further compounds the problem Tribes are experiencing in delivering transportation services to their communities. That is one reason 

why the Standing Rock Sioux Tribal Council opted to enter into direct negotiations 

with FHWA in 2005 to contract the IRR Program under an agreement with FHWA 

rather than continue to negotiate ISDA construction contracts with the BIA. Under 

our IRR Program Agreement with FHWA, our Tribe receives its IRR Program allocations timely, even this year when Congress passed four continuing resolutions before the final FY 2007 joint resolution was enacted in February. 

It is bad enough when an agency practice runs directly against its stated policies 

and hinders the efforts by Indian Tribes and BIA Regions to improve transportation 

systems in Indian country. It is worse when a law is enacted by Congress to facilitate the transfer of funds from the BIA to Tribal governments and the law is ignored or made irrelevant by agency inaction. The 30-day rule is the law. It promotes 

the objectives of the IRR Program. The BIA should obey it. 

4. Simplify the Federal Grant and Contract Application and Award Process for Tribal Governments 

Why are Tribal communities lagging so far behind the Nation in reducing fatal 

traffic accidents? It is as if national campaigns to reduce traffic accidents and 

deaths end at reservation boundaries. I am afraid that resources are not reaching 

reservation communities at the rate that they should. These shortfalls in funding 

48

have a devastating effect on Native Americans who are dying and suffering injuries 

at unacceptable rates. 

If Indian Tribes are eligible recipients of Federal transportation funding, for the 

programs to work in Indian communities, the money must reach the intended beneficiaries. That is not the case presently. 

Part of the problem lies in the cumbersome, and wholly separate processes by 

which Indian Tribes must apply for Federal transportation, transit, and traffic safety grants administered by multiple Federal agencies (BIA, FHWA, NHTSA, FTA, 

Federal Aviation Administration (FAA), etc.) or Federal transportation grants administered through the States (Safe Routes to Schools, High Risk Rural Roads, 

Highways for Life, etc.). 

We strongly recommend that agencies within the Department of Transportation 

(Federal Lands Highway, FTA, NHTSA, and FAA) develop a simplified contract document for Tribes. This will encourage more Tribes to apply for these grants and 

bring the benefits of the Federal programs to Indian communities where they are 

most needed. Direct Federal funding of Tribes through Tribally protective and appropriate government-to-government agreements streamlines Tribal access to Federal program funds by removing artificial barriers to these grant funds by eliminating the unnecessary, costly and time consuming process of requiring Tribes to 

contract with the States for receipt of Federal transportation dollars. The Safe 

Routes to School Program and High Risk Rural Roads Program are just two examples among many of the Federal programs that should be directly available to Indian Tribes. 

As noted above and as discussed in the 2006 report by the National Conference 

of State Legislatures, most Tribal governments lack the personnel and resources to 

administer multiple Federal grants and contracts with widely varying terms and 

conditions. Complex, conflicting grant conditions and reporting requirements hinder 

efficient Tribal administration of transportation programs and projects. The agencies should develop a single grant application process with one annual deadline as 

Congress directed the Secretary of Transportation to do for the States in applying 

for Highway Safety Program grants under SAFETEA–LU. See 23 U.S.C. § 402(m), 

as amended, sec. 2002(d) of SAFETEA–LU, 119 Stat. 1521–1522. 

Developing a simplified agreement, which takes into account the unique legal status of Tribes and respects Tribal sovereignty, will improve program performance 

and Tribal accountability. 

Under SAFETEA–LU, Congress directed the BIA to also ‘‘establish a similar simplified process for applications for grants from Indian Tribes under [Chapter 4 of 

Title 23]’’ as well. Id. To date, I am not aware of any action taken by the BIA’s Indian Highway Safety Program (IHSP) to consult with Indian Tribes, the Nation’s 

Tribal Technical Assistance Programs (TTAPs), or the IRR Program Coordinating 

Committee concerning the development of a simplified single grant application process for Highway Safety Program grants. Despite numerous invitations to the former 

Program Administrator of the BIA’s IHSP to attend an IRR Program Coordinating 

Committee meeting, no representative of that office has ever attended a Coordinating Committee meeting. This has occurred even though a number of our meetings were held in Albuquerque, New Mexico where IHSP offices are located. 

I trust that the next Program Administrator will actively consult and work with 

Indian Tribes, the TTAPs, and the Coordinating Committee to implement 

SAFETEA–LU’s mandate. 

5. Implement Model IDSA Contracts and Agreements so that Indian Tribes May 

More Easily Assume the Secretary of the Interior’s Duties for the IRR Program 

Congress recognized the need for a standardized model contract in the self-determination context in 1994 and legislated, in P.L. 103–413 (1994), the content of a 

non-construction Indian Self-Determination Act (ISDA) contract. See 25 U.S.C. 

§ 450l. This is known as the ‘‘model Section 108’’ ISDA contract. Similar model 

agreements should be developed to speed the distribution of Federal transportation 

dollars to Indian Tribes as direct recipients. 

The IRR Program Coordinating Committee and other Tribal advocates provided 

a sample Title I Indian Self-Determination contract to BIA officials in the summer 

of 2006 for use in the IRR Program. To date, the BIA has not approved a sample 

ISDA contract for Indian Tribes. Only last month did the BIA’s Office of Self-Governance issue a proposed Title IV Self-Governance Model Indian Reservation Roads 

Addendum for use by Self-Governance Tribes. Tribes are still waiting for the Interior Department’s awarding officials and attorneys to provide a response to the Tribally proposed model Title I ISDA contract for the IRR Program. 

Interior Department attorneys have incorrectly concluded that Tribes must negotiate a separate agreement if they wish to use innovative financing techniques to 

49

pay for eligible IRR Program projects. This is shortsighted and legally unnecessary. 

It will hinder the use of innovative financing techniques by Tribes by raising the 

transactional costs associated with flexible financing arrangements. 

Because of the Interior Department’s intransigence on this issue, Tribes are being 

forced to use outdated, overly burdensome ISDA contracts that BIA Regional Office 

Awarding Officials are ‘‘used to’’ negotiating. These contracts do not reflect many 

ofthe hard won improvements to the IRR Program that Tribes negotiated with BIA 

and FHWA in the final IRR Program regulations, implemented in November 2004, 

and which Congress included in SAFETEA–LU. These improvements include Tribal 

approvals of Plans, Specifications & Estimate (PS&E) packages, full annual advance 

funding, and innovative financing techniques by which Tribal governments, if they 

choose, can leverage IRR Program funds to help finance road projects. 

The delay in the award of IRR Program contracts hurts every Tribe’s bottom line 

and reflects poorly on the BIA’s administration of the IRR Program. Roads are not 

being built in a timely manner and present continuing safety risks. Construction 

seasons are limited in many BIA Regions. The ideal time to bid out construction 

jobs—to lower cost—is in the middle of winter, not in the spring or summer months 

when the BIA is now releasing the majority of IRR Program funds. 

Delays in the ISDA contracting process, a process that has been in place for over 

30 years, only make transportation construction more costly. Model IRR Program 

funding agreements will help bring the BIA into compliance with SAFETEA–LU’s 

30-day payment mandate and better serve Indian country. 

It should be a goal of the Department of Transportation and Department of the 

Interior to lower the cost of doing business in Indian country. It will allow Tribes 

to put Federal funds into the roads and bridges that can improve the quality of life 

of our communities, not waste money serving a complicated bureaucracy. This goal 

cannot be met until the BIA approves and widely distributes to the BIA Regions 

acceptable model ISDA agreements. 

6. The BIA and FHWA Must Complete a Comprehensive National Inventory of 

Transportation Facilities Eligible for Assistance Under the IRR Program 

The inventory of the Indian Reservation Roads Program is growing at a dramatic 

rate. In 2005, there were 62,319 road miles in the BIA’s RIFDS. In 2007, there are 

more than 85,000 road miles in RIFDS, an increase of more than 37 percent. BIA 

System roads, those dirt, gravel, and paved roads owned by the BIA, are only a subset of all eligible IRR Program routes. The entire IRR Program System of roads eligible for funding under the IRR Program is also comprised of routes owned by 

Tribes, States, counties, townships, and other Federal agencies. 

The IRR Program formula, by which Federal funds are apportioned among the 

Nation’s federally recognized Indian Tribes, places heavy emphasis upon road inventory miles. See 25 C.F.R. § 170.201 et seq. The integrity of the IRR Program is dependent upon accurate and complete information on each Indian Tribe’s IRR Program inventory of eligible roads. 

a) SAFETEA–LU Mandates a Comprehensive Update 

When Congress passed SAFETEA–LU in 2005, Congress directed the Secretary 

of Transportation, in cooperation with the Secretary of the Interior, to complete by 

August 10, 2007, a ‘‘comprehensive national inventory of transportation facilities 

that are eligible for assistance’’ under the IRR Program. 23 U.S.C. § 202(d)(2)(G). 

The comprehensive inventory update was meant by Congress to be more than just 

a ‘‘snapshot’’ of the current IRR Program inventory. It was meant to identify and 

fill in the gaps between the existing incomplete IRR Program inventory and what 

the inventory would include if all eligible IRR routes were included. 

Unfortunately, it is my understanding as Chairman of the IRR Program Coordinating Committee that a snapshot is all that Indian country and the Congress will 

get, unless Congress demands that the agencies conduct a comprehensive inventory 

update of the IRR Program as it so plainly directed in SAFETEA–LU. 

The inventory assessment is intended to assist the agencies to identify Tribal 

transportation facilities and determine the relative transportation needs among Indian Tribes. Eligible routes, at a minimum, by law include:

i) routes included in the BIA system inventory receiving funding since 1992;

ii) routes constructed or reconstructed with funds from the Highway Trust Fund 

under the IRR Program since 1983;

iii) routes owned by an Indian Tribe;

iv) community streets or bridges within the exterior boundaries of Indian reservations, Alaska Native villages, and other recognized Indian communities (inVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00053 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
50

cluding communities in former Indian reservations in Oklahoma) in which the 

majority of residents are American Indians or Alaska Natives;

v) ‘‘primary access routes’’ proposed by Tribal governments, including roads between villages, roads to landfills, roads to drinking water sources, roads to natural resources identified for economic development, and roads that provide access to intermodal termini, such as airports, harbors, or boat landings.

In addition, Congress directed in SAFETEA–LU that nothing shall preclude the 

Secretary of Transportation from including additional transportation facilities that 

are eligible for funding under the IRR Program ‘‘if such additional facilities are included in the inventory in a uniform and consistent manner nationally.’’ This has 

not occurred. 

b) The BIA and FHWA Must Exercise Leadership 

Regrettably, the IRR Program Coordinating Committee has not reached consensus, and the BIA and FHWA have not adopted, uniform guidelines on what 

routes are and are not eligible for inclusion in the IRR Program inventory for purposes of determining funding under the IRR Program formula (Tribal Transportation Allocation Methodology). How can the IRR Program Coordinating Committee, 

BIA, FHWA, or Congress accurately assess the fairness of the current formula for 

the IRR Program if the BIA and FHWA have not set clear guidelines on the types 

of routes that may be added to Tribal inventories or the process which Indian Tribes 

and BIA Regions must follow to place such routes into the RIFDS? 

The impasse over establishing a ‘‘bright line’’ policy as to the types of routes eligible for inclusion in the IRR Program inventory, and the minimum data that Indian 

Tribes must include with every route submitted to the BIA for inclusion in their 

IRR Program inventory, has caused considerable delays, uncertainty, and frustration in the distribution of IRR Program funds. Challenges and appeals over the 

BIA’s failure to include routes in the IRR Program inventory delay the BIA’s full 

distribution of IRR Program funds, again contrary to Congress’ 30-day payment 

mandate. 

When the IRR Program Coordinating Committee cannot reach consensus on fair, 

reasonable and equitable rules for the inclusion of routes in the IRR Program inventory, it must fall to the BIA and FHWA to exercise leadership. The Coordinating 

Committee is an advisory committee to these agencies. I hope that the agencies will 

always accept the Committee’s recommendations. Ultimately, however, it is for the 

BIA and FHWA to interpret and implement the law. But they must do so in a timely manner. The IRR Program must benefit all Indian Tribes, regardless of size. 

Every Indian Tribe has transportation needs. Large Indian Tribes have large road 

inventories and require the funds to maintain them, and replace them when they 

are worn. Smaller Tribes require funds to plan, design, build, and maintain their 

priority routes. 

So long as the comprehensive update of the IRR Program, and the identification 

of eligible routes that are not yet included in the inventory, is incomplete, these additional routes are invisible to the IRR Program, to policy makers and appropriators. Inventory is a key component to funding and these agencies have a special 

obligation to Indian Tribes to identify all eligible routes and help Indian Tribes update their Tribal inventories. 

c) Agencies Report to Congress 

SAFETEA–LU requires the agencies to submit a report to Congress on the national Tribal transportation inventory not later than November 10, 2007, 90 days 

after the inventory is completed in August of this year. Mr. Chairman, we want 

what Congress mandated in SAFETEA–LU: a ‘‘comprehensive national inventory of 

transportation facilities that are eligible for assistance’’ under the IRR Program. By 

November 2007, more than 2 years after SAFETEA–LU was enacted, if all the BIA 

and FHWA report to Congress is that the IRR Program inventory is incomplete, and 

does not include all routes that are eligible under SAFETEA–LU for inclusion in the 

IRR Program inventory, the agencies will not be telling Congress or Indian Tribes 

anything new. 

We ask that this Committee direct the BIA and FWHA to provide Congress and 

the Nation’s Indian Tribes with a comprehensive review and report on the total IRR 

Program inventory of transportation facilities eligible for inclusion and funding 

under the IRR Program as directed in SAFETEA–LU. 

51

7. Congress Should Encourage the President to Nominate a Candidate to Fill the Position of Deputy Assistant Secretary for Tribal Government Affairs within the 

Department of Transportation 

Tribes worked very hard during the consideration of SAFETEA–LU to develop 

consensus positions to advocate before the Administration and Congress. This Committee knows how difficult it is to legislate in the field of Indian law and obtain 

a unified position from 564 sovereign Tribal governments. Our strategy was quite 

successful as is reflected in the many positive provisions contained in SAFETEA–

LU. However, this success will not be realized if the Administration does not act 

on the legislative mandates. 

For this reason, we are disappointed that the Administration has so far failed to 

nominate anyone to fill the position of Deputy Assistant Secretary for Tribal Government Affairs, as required by SAFETEA–LU. Tribes advocated, during Congress’ 

consideration of SAFETEA–LU, for the creation of this position at the Assistant Secretarial level so that Tribal transportation issues would be more prominent before 

the Department and within the Office of the Secretary. 

As it states in SAFETEA–LU: ‘‘in accordance with Federal policies promoting Indian self determination, the Department of Transportation shall have, within the office of the Secretary a Deputy Assistant Secretary for Tribal Government Affairs appointed by the President to plan, coordinate, and implement the Department of 

Transportation policy and programs serving Indian Tribes and Tribal organizations 

and to coordinate Tribal transportation programs and activities in all offices and administrations of the Department . . . .’’ 49 U.S.C. § 102(f)(1), as amended. 

If a Deputy Assistant Secretary at DOT had been in place, perhaps the Department would have developed, in consultation with Indian Tribes, Tribal eligibility for 

the Scenic Byways program as authorized under SAFETEA–LU, and concluded that 

Indian Tribes are eligible sub-recipients for the State-administered Safe Routes to 

School Program, without requiring the intervention of Indian Tribes and the Congress, to overturn the Department’s initial position. 

We commend FHWA Administrator Rick Capka, former Associate Administrator 

Arthur Hamilton, and Office of Transit Programs Director Mary Martha Churchman, and their staffs, for their support of and advocacy for the IRR Program, Tribal 

Transit Grants, and Tribal transportation generally. The IRR Program is a small 

component of the Federal Highway Administration’s Federal Lands Highways budget and jurisdiction. There is no substitute for an Assistant Secretary with primary 

responsibility for ensuring that all agencies within DOT coordinate their actions in 

a manner that best serves Indian country and the overall goals of the Department. 

We ask the Committee to urge the Administration to fill the Deputy Assistant 

Secretary position at DOT at the earliest possible date. This appointment will help 

achieve the goals of Congress, the Administration, and Indian Tribes to improve the 

delivery of Tribal transportation programs at all levels within the Department of 

Transportation. 

8. Increase the Number of DOT Programs Which Indian Tribes May Participate in 

as Direct Recipients 

Indian Tribes have demonstrated that they possess the capacity to deliver successful transportation programs despite the many obstacles that stand in our way. We 

are separate sovereign governments and not subdivisions of the States. While Indian Tribes may be eligible sub-recipients of some State-administered programs financed by the U.S. Department of Transportation, such as the Safe Routes to 

Schools, High Risk Rural Roads Program, and Highways for Life, Indian Tribes do 

not typically receive their fair share of these program funds. 

I hope my testimony today, and the statistics that I have referenced, drive home 

to you how great the transportation needs are in Indian country. A little assistance 

will go a long way because our statistics of traffic safety accidents and fatalities are 

so high. Congress should therefore increase the number of Department of Transportation programs that Indian Tribes may apply for directly rather than as sub-recipients through the States. In many instances, the forms of State contracts are too 

cumbersome, or are simply objectionable to Tribes, requiring Tribes to waive their 

sovereign immunity from suit, or appear in State courts. The result is that Tribes 

often do not even apply for these much needed grants. 

9. Establish a Federal Lands Highways Safety Program for Indian Reservation 

Roads; Set Aside for the High Risk Rural Road Program; and Increase Funding 

for FTA’s Tribal Transit Grant Program to $50 Million Annually 

Under SAFETEA–LU, for FY 2008, Congress authorized $1.275 billion for the 

highway safety improvement program under section 148 of title 23 (High Risk Rural 

Road Program); and authorized nearly $700 million under Title II of SAFETEA–LU 

52

for the Highway Safety Programs of chapter 4 of title 23. These funds include: for 

highway safety programs ($225 million); highway safety research and development 

($107 million); occupant protection incentive grants ($25 million); safety belt performance grants ($124.5 million); State traffic safety information system improvements ($34.5 million); alcohol-impaired driving countermeasures incentive ($131 

million); national driver register ($4 million); high visibility enforcement program 

($29 million); motorcyclist safety ($6 million); and child safety and child booster seat 

safety incentive grants ($6 million). 

SAFETEA–LU amended section 402(c) of title 23 to increase the set aside of appropriations for Highway Safety Programs to the Secretary of the Interior from 3⁄4

of 1 percent to 2 percent annually, but this increase still provides less than $5 million dollars to be divided among all 564 federally recognized Tribes. 

We must build on this success and establish an Indian Reservation Roads Safety 

Program for the Federal Lands Highways office within the Department of Transportation. In 2004 and 2005, Indian Tribes sought to establish a set aside for the IRR 

Program for the High Risk Rural Road Program during the Congress’ consideration 

of SAFETEA–LU as well as a Federal Lands Highways safety program funded at 

$40 million annually. We currently recommend that Congress create a 2 percent set 

aside for the IRR Program for the High Risk Rural Roads Program, and create a 

Highway Safety Program for Indian reservation roads within the Federal Lands 

Highways with an appropriation amount of $50 million annually to dramatically reduce the incidence of death and injury on America’s Indian reservation roads. 

If Congress develops Tribal set asides for Department of Transportation safety 

programs, it would do so much to combat behavioral and safety issues that contribute to the high rates of death and injury on Indian reservation roads. 

The Tribal Transit Program is a huge success and demonstrates the unmet need 

for more transit funding of Tribal transit programs. Our Reservation operates a 

transit program and it benefits so many of our members, including students attending Sitting Bull College. As noted above, nearly 100 Tribes submitted applications 

to FTA in the first year FTA announced the program. FTA was able to fund over 

60 of the applicants. Due to the demonstrated high demand and proven results, 

Congress should increase the authorization for the Tribal Transit Grant Program 

to $50 million annually. 

10. Increase Funding to the Successful Tribal Transportation Assistance Programs 

(TTAPs) to at least $2.5 Million Annually to Increase Awareness in Indian Country of ‘‘Best Practices’’ in Transportation Planning, Design, Construction, Maintenance, and Highway Safety Measures 

Tribal Technical Assistance Programs (TTAPs) are the real unsung heroes in Tribal transportation policy. They work to educate Tribal officials on transportation 

issues, increase the technical capacity of Tribal governments in the transportation 

arena, and provide training in safety and equipment operation and maintenance. As 

a result of their efforts, Tribal governments are playing a greater, and more informed, role in the delivery of transportation services to their communities. 

The TTAPs are 15 years old, having been created in the Intermodal Surface 

Transportation Efficiency Act of 1991 (ISTEA) and is funded in part through 

FHWA’s Office of Professional and Corporate Development (OPCD), and with IRR 

Program funds. Seven TTAPs assist Tribes throughout the country. Under 

SAFTEA–LU, the BIA is authorized to fund the TTAPs at $1.0 million annually. I 

recommend that Congress increase funding to the TTAPs to $2.5 million annually 

so that they may expand their valuable services to Indian Tribes. 

11. Promote the Use of Flexible Financing Arrangements in Standard ISDA Contracts and Agreements 

I have personally witnessed the benefits to be gained through the use of flexible 

financing techniques. Flexible financing or advance construction agreements allow 

Tribes to use a portion of their IRR Program funds to repay government bonds or 

commercial lenders the interest and principal for loans advanced to the Tribe to finance an IRR Program-eligible project. To be eligible, the project must be included 

on an FHWA-approved Transportation Improvement Program (TIP). Innovative financing is different than pay-as-you-go (paygo) arrangements in that an entire construction project may be bid out as a single project which creates economies of scale, 

reduces mobilization costs, and minimizes the negative effects that construction inflation would otherwise have on available funds that are saved by the Tribe over 

time. 

The Standing Rock Sioux Tribe financed a $26.5 million reconstruction of community streets throughout our reservation in 2003–2006 using an advance construction 

agreement we negotiated with the BIA and FHWA. This project was a resounding 

53

success. We are especially disappointed therefore that the Assistant Secretary—Indian Affairs informed the IRR Program Coordinating Committee in April 2007 that 

the BIA will not recognize advance construction authority through straight-forward 

Indian Self-Determination Act (ISDA) contracts and Self-Governance agreements. 

Instead, the BIA will only enter into an advance construction arrangement with a 

Tribe through negotiation of a separate agreement, under authority of 23 U.S.C. 

§ 204, which is not included in or referenced by the ISDA contract or agreement. 

The Assistant Secretary’s letter does not explain the BIA’s rationale as to why the 

ISDA contract, the contract document which Tribal governments are most familiar 

with and accustomed to negotiating with the BIA for over 30 years, is not an acceptable agreement for the use of flexible financing arrangements by Tribes. I enclose 

the Assistant Secretary’s April 27, 2007, letter and the Coordinating Committee’s 

original letter of February 14, 2007. 

The BIA’s decision will likely result in fewer Tribes using advance construction 

agreements in the future to finance eligible road construction projects. This decision 

will also make it harder for Tribes to obtain short term bridge loans to complete 

projects at the end of a Fiscal Year. This will mean unnecessary project closures 

and costly demobilizations and remobilizations. To mandate that Indian Tribes must 

negotiate a separate advance construction agreement is not sensible and raises the 

cost of doing business in Indian country. As the Assistant Secretary concedes in his 

letter, the ‘‘Federal Government does not act as a surety, guarantor, or project financier or request approval of a loan from any lending institution’’ under these agreements, so there is no reason to require the Tribes to enter into a separate entirely 

superfluous agreement, when the Self-Determination agreement can serve this same 

purpose. 

By contrast, FHWA, in negotiating its IRR Program Agreement with five Indian 

Tribes in 2006, allowed the IRR Program Agreement to reference the IRR Program 

regulations’ flexible financing provisions (25 C.F.R. 170.300 et seq.), and permit the 

Tribes, at their option, to direct a portion of their IRR Program funds to be paid 

from FHWA directly to the bond trustee or lending institution financing an eligible 

project under the IRR Program. This more sensible approach lowers transaction 

costs and provides incentives to lenders to do business with Tribal governments on 

transportation projects. 

We encourage the Committee to either counsel the Department of the Interior to 

retract its unwarranted decision or clarify in future legislation that advance construction agreements may be included in the standard Title I ISDA contract and 

Title IV Self-Governance agreement. 

12. Implement Right-of-Way Reform in Indian Country to Facilitate Reconstruction 

of Existing Roads and the Design and Construction of New Roads 

Reservation areas are often a checkerboard of fee, allotted, and Tribal trust lands. 

Therefore, it is often time-consuming and expensive for Tribes and the Federal Government to obtain all ofthe necessary and appropriate rights-of-way before beginning construction or renovation of roadways, bridges, and other transportation infrastructure. 

The BIA is responsible for maintaining records of rights-of-way in Indian Country. 

Unfortunately, BIA right-of-way records management is in a terrible state. IRR 

projects are often delayed by months—or even years—because the BIA realty officers cannot locate valid right-of-way records. Tribes are using their IRR Program 

funds, the only funds the BIA claims are available, to cure inaccurate or lost rightsof-way. Tribal and Federal funds are thus often wasted in re-acquiring valid rightsof-way simply because adequate BIA records have not been kept. 

The Interior Department should undertake a major new initiative to organize, update, and computerize its BIA right-of-way records. It should make these records 

available to Tribal governments in an easy-to-access format such as a GIS/GPS 

mapping system. The Interior Department should also be more aware and protective 

of Tribal jurisdictional interests in the right-of-way acquisition and transfer process, 

in light of the U.S. Supreme Court’s adverse right-of-way ruling in Strate v. A–1 

Contractors, 520 U.S. 438 (1997) and subsequent cases. 

The Federal Government should also work closely with Tribes to implement a 

proactive program of ‘‘corridor management.’’ Through ‘‘corridor management,’’ Tribally preferred corridors for transportation and other infrastructural elements—such 

as for electrical lines, water lines, and others—can be planned well in advance. In 

some instances, the easements for these corridors may be obtained in advance. Corridor management requires Tribal governments to think proactively about how they 

envision future development to occur on their reservations. Through corridor management, rights-of-way for all inter-related infrastructural development projects can 

54

be obtained in a unified manner, speeding up design and construction once a specific 

project is authorized and funded. 

The Federal Government should be an active and supportive partner in providing 

technical assistance to Tribes who wish to apply the principles of corridor management to their transportation programs and to general reservation development. 

VI. Conclusion 

Indian Tribes are coming into their own in the transportation field. Tribal governments are focusing on long-range transportation planning, assuming the Interior 

Department’s duties for the IRR Program, partnering with States and county governments on mutually beneficial construction projects, and looking at innovative 

ways to finance the development of infrastructure on their reservations. These 

trends should be applauded and I wish to thank the Members of this Committee 

for the many beneficial legislative changes that you worked to include in 

SAFETEA–LU. Yet even with these successes, many challenges still remain. Congress and the Administration must recognize that if Indian Tribes are to overcome 

these challenges, Tribal governments must be given the resources to succeed. 

I hope that as a result of this hearing Tribal governments, Tribal Technical Assistance Programs (TTAPs), and State DOTs, can work in greater concert with the 

BIA and Department of Transportation to improve transportation infrastructure in 

Indian country—from building and enhancing Tribal transportation departments to 

building and maintaining safer roads in Indian country. 

Tribal communities will not suffer the traffic fatalities and injuries at the rates 

we are now seeing if we can interact on a more equal footing with States, to plan, 

design, build and maintain our inventory of roads, and implement traffic safety 

measures which States have shown to be successful in promoting highway safety. 

Pockets of best practices exist within the agencies which demonstrate that the manner by which Indian Tribes receive Federal funds and operate Federal transportation can be improved for the better. Tribes need the help of Congress to makes 

these best practices the rule, rather than the exception. 

Tribal governments, Federal agencies, and Congress need to open a new dialogue 

where old habits and old ways of doing business are discarded for more efficient 

practices. We are making progress in Tribal transportation and I encourage this 

Committee and the Congress to work in partnership with Indian Tribal governments. Indian Tribes are ready to do our share to improve the safety of our communities for ourselves and our children’s future. 

Thank you for giving me the opportunity to present testimony regarding Tribal 

transportation issues on behalf of the Standing Rock Sioux Tribe. 

Attachments 

INDIAN RESERVATION ROADS COORDINATING COMMITTEE

Albuquerque, NM, Meeting—February 14, 2007

Hon. JAMES CASON, 

Associate Deputy Secretary, 

U.S. Department of the Interior, 

Washington, DC.

Dear Associate Deputy Secretary Cason

Thank you for meeting with the Tribal members of the IRR Program Coordinating 

Committee on January 25, 2007. We value the productive discussions we had with 

you, Mr. Ragsdale, Mr. Gidner, and your staff concerning the state of the IRR Program and our recommendations to improve it. 

We write to follow up on the issue of flexible financing. It is an important issue 

for two reasons. First, flexible financing/advance construction techniques are tools 

which Indian tribes have used successfully to raise private capital to finance much 

needed road construction projects that they could not otherwise afford to construct 

using the traditional pay-as-you-go finance method. Second, flexible financing is an 

allowable activity under Title 23 United States Code (23 U.S.C. § 204(b)) and the 

IRR Program regulations (25 C.F.R. Part 170.300 et seq.). 

Since our meeting of January 25th, we learned that an Attorney Advisor in the 

Minneapolis Field Solicitor’s Office issued a memorandum to the Great Plains Region Branch of Roads Engineer on December 21, 2006, in which the Regional engineer was informed that the Solicitor’s Office in Washington, D.C. has advised the 

BIA that no further flexible financing agreements are to be entered into between 

the BIA and Indian tribes, whether under authority of the Indian Self-Determination Act, P.L. 93–638 or under authority of 23 U.S.C. § 204. The Attorney Advisor 

advised the Great Plains Region Branch of Roads Engineer that until further notice, 

55

tribes interested in flexible financing provisions should seek agreements with the 

Federal Highway Administration (FHWA). 

The BIA entered into an Advance Construction Agreement with the Standing 

Rock Sioux Tribe in 2004 for a $26.5 million reconstruction of community streets. 

This agreement was approved by Interior Department’s Office of the Solicitor. The 

project was an overwhelming success. In 2006, FHWA signed five agreements with 

Indian tribes under authority of SAFETEA–LU and ‘‘in accordance with the Indian 

Self-Determination Act.’’ All of these agreements authorize the use of advance construction financing at the discretion of the tribe. 

The Attorney Advisor’s memorandum, which we enclose with this letter, offers no 

explanation why existing authorities, under 23 U.S.C. § 204 or 25 C.F.R. § 170.300 

et seq., are not adequate to support the incorporation of advance construction provisions in an appropriate agreement. 

Flexible financing techniques: (1) are authorized by Federal law and regulations, 

(2) have been approved by the Department in prior agreements, (3) have a proven 

track record of success, (4) provide jobs, spur economic development and make reservation roads safer, (5) bring private financing to Indian country, and (6) advance 

Tribal and Federal goals to address the horrendous state of reservation infrastructure in Indian country. 

We do not want the Solicitor’s Office to issue an opinion that would deprive Indian tribes of a financing tool available to every State and which is authorized by 

law. We do, however, ask that you ascertain the Department’s objections to this financing technique and provide the Committee with a reasoned and understandable 

explanation of why the Solicitor’s Office has put a stop to this authorized activity. 

We look forward to your earliest possible response to this matter. 

Sincerely, 

PETE RED TOMAHAWK, Chair; Royce Gchachu, Vice-Chair.

cc: Mr. Patrick Ragsdale; Mr. Jerry Gidner; Mr. LeRoy Gishi; Office of the Solicitor; Mr. Robert Sparrow; and Vivian Philbin, Esq. 

U.S. DEPARTMENT OF THE INTERIOR, OFFICE OF THE SECRETARY

Washington, DC, April 27, 2007

Mr. MATTHEW S. JAFFE, 


712toma1.eps
56

Sonoksy, Chambers, Sachse, Endreson & Perry, 

Washington, DC.

Dear Mr. Jaffe:

Thank you for faxing me a copy of the letter of February 16, 2007, to Associate 

Deputy Secretary James Cason, from Chairman Pete Red Tomahawk and Vice 

Chairman Royce Gchachu, Indian Reservation Roads Program Coordinating Committee (‘‘the committee’’) regarding their concern with flexible financing agreements. 

We share the committee’s view that flexible financing affords tribes advantages 

in meeting their transportation infrastructure needs. Our participation to date has 

been in developing advance construction agreements and project agreements designed to help foster this capacity building for tribes. An advance construction 

agreement is specifically designed to allow a tribe to utilize a portion of its IRR program funds to repay commercial financing instruments by acknowledging the 

project, and agreeing to transfer the negotiated amount into the tribe’s special bank 

account and include the project in the tribe’s IRR Transportation Improvement Program (TIP). The Federal Government does not act as a surety, guarantor, or project 

financier or request approval of a loan from any lending institution. As of this date, 

tribes have only utilized flexible or innovative financing to advance approved 

projects. The use of this flexible financing methodology has been strictly between 

the tribe and the lender and has not involved the BIA. 

The lending institutions may have a sense of comfort in knowing that advance 

construction agreements are in place, but the agreements offer nothing more than 

an acknowledgement of available IRR program funding that may be used by the 

tribe to pay either principal or interest for any lending agreements for the projects. 

The authority granted under 23 U.S.C. § 204 is that the Secretary may enter into 

construction contracts and other appropriate contracts (other than P.L. 93–638 contracts and agreements) with an Indian tribe. This section authorizes the Secretary 

to enter into the advance construction agreements based on the criteria stated 

above. 

We will continue to support tribes in advancing projects and improving Indian 

Reservation Roads, regardless of the road owner. After review by both the BIA and 

the Solicitor’s Office, we have determined to continue to allow advance construction 

agreements and project agreements, where applicable, based on the following criteria:

1. That all advance construction agreements will be reviewed and approved by 

the Office of the Solicitor before execution.

2. That all project agreements, when BIA roads are specifically identified to be 

advance constructed, will be reviewed and approved by the Office of the Solicitor before execution.

3. That all (advance construction and project) agreements will be entered into 

as separate agreements based on 23 U.S.C. § 204(b)(2)(B) and not included in 

or referenced in P.L. 93–638 contracts or agreements.

Thank you for your interest and support of the Indian Reservation Roads program. If you have additional questions, please contact LeRoy Gishi, Division of 

Transportation at (202) 513–7711 or Sabrina McCarthy, Office of Solicitor at (202) 

219–2139. 

Sincerely, 

CARL J. ARTMAN, 

Assistant Secretary—Indian Affairs.

The CHAIRMAN. Mr. Red Tomahawk, thank you again for appearing, and thanks for your many decades of work on these issues. 

Next, we will hear from Mr. Jim Garrigan. He is Transportation 

Planner for the Red Lake Band of Chippewa Indians in Red Lake, 

Minnesota. Mr. Garrigan, welcome, and you may proceed. 

STATEMENT OF JAMES GARRIGAN, TRANSPORTATION 

PLANNER, RED LAKE BAND OF CHIPPEWA INDIANS 

Mr. GARRIGAN. Thank you. 

Good morning, Mr. Chairman, Vice Chair Murkowski, and Members of this Committee. My name is James Garrigan, Transportation Planner for the Red Lake Band of Chippewa Indians. 

57

On behalf of Chairman Jourdain, the Red Lake Tribal Council, 

and the people they represent, I thank you for the opportunity to 

provide testimony concerning transportation issues in Indian Country. 

The Red Lake Band of Chippewa Indians has long been at the 

forefront in efforts to reform Federal transportation programs to 

better serve the needs of Indian reservations and communities. Although great strides have been made in improving the IRR program under TEA–21 and SAFETEA–LU, several issues have arisen 

that are negatively affecting the full implementation of the provisions of these Acts as intended by Congress. 

One of the main issues of concern is the IRR inventory process 

that is threatening to undo some of the significant gains Indian 

tribes have made through TEA–21 and SAFETEA–LU. Under the 

negotiated rulemaking process required by TEA–21, Indian tribes 

and Federal agencies negotiated new rules, as contained in 25 CFR 

170, by which the IRR program would operate. These rules provide 

the process by which tribes and the BIA update the inventory of 

roads and bridges on the IRR system. 

The negotiated rulemaking process took four and a half years to 

complete, and it took the BIA another two and a half years to publish the final rule. Upon publication of the final rule, we were dismayed to discover that the BIA unilaterally left out or changed 

critical language affecting the inventory that was included in the 

proposed rule. 

The BIA has never explained why it decided without consultation 

or involvement of the tribes to remove or change regulatory provisions proposed by the tribal negotiating team that would improve 

the integrity of the inventory system. It is our understanding that 

the Indian Reservation Roads program was established by Congress primarily to fund the construction of roads and bridges on Indian reservations due to the fact that these roads and bridges are 

considered Federal roads, and it is the Federal Government’s responsibility to construct and maintain these facilities on Indian 

reservations. 

We believe that the IRR program should primarily address the 

construction and improvement needs of roads that are located within or provide primary access to Indian lands and that are not eligible for other Federal, State and county funding sources. 

While Congress and the Administration have substantially increased the IRR funding, the number of roads that are eligible for 

funding has been increased at the same time. Some of these roads 

are eligible for substantial sources of other funding. As a result, the 

roads for which the only source of funding is IRR funding are receiving a smaller slice of the bigger funding pie. 

The unilateral BIA decision on the final rule favors those tribes 

that are located near urban areas, where transportation needs are 

the shared responsibility of tribes and their neighboring governments, and where the Indians are overwhelmingly outnumbered by 

non–Indian users of these roads. The BIA system on reservation 

roads has a documented construction backlog of $13 billion. In the 

face of that need, the BIA’s unilateral final rule has resulted in siphoning off scarce IRR dollars from areas where the greatest need 

exists. 

58

A couple of other issues that I would like to touch on that were 

touched on previously, I would just like to expand on those, Mr. 

Chairman. That is the need for the tribal transportation facility inventory that is truly comprehensive. The Federal Highway Administration has failed to meet the intent of section 1119(f) of 

SAFETEA–LU regarding the conduct of a comprehensive national 

tribal transportation facility inventory. Despite the mandatory nature of this statutory requirement, FHWA has decided to conduct 

merely a ‘‘windshield’’ survey sampling of IRR roads. This approach 

and methodology falls far short of the statutory requirement. We 

urge the Congress to insist that FHWA complete the comprehensive inventory of the IRR system as intended. This may require an 

extension of the time limit stipulated in SAFETEA–LU. 

One other issue that has generated a lot of discussion here this 

morning is road maintenance. Protection of the investment in any 

type of infrastructure requires proper maintenance. Historically, 

the IRR maintenance system has been chronically underfunded, 

which has caused safety hazards and premature failure of many 

roads on the IRR system. Roads usually have 20 year design life, 

but because of inadequate maintenance, many of the IRR system 

roads last only about half their design life and have to be reconstructed much sooner. 

The BIA is responsible for maintaining the IRR system. However, the funding BIA provides is approximately 25 percent of what 

is required to properly maintain the system. The IRR maintenance 

situation has become even more critical with the increase of IRR 

funding through SAFETEA–LU. While IRR construction funding is 

increasing, BIA road maintenance is declining. 

The BIA receives approximately $25 million per year as part of 

its lump sum appropriations for IRR road maintenance activities. 

BIA now estimates that $120 million per year is actually what is 

needed to properly maintain roads on the BIA system. At present 

levels, the BIA spends less than $500 in maintenance funding per 

mile. Most State transportation departments spend approximately 

$4,000 to $5,000 per mile each year on maintenance of State roads. 

Of course, States receive highway taxes based upon the sale of 

gasoline within the State. While users of the tribal roads pay these 

same State highway fuel taxes, tribal roads receive little or no benefit from State fuel taxes. Tribes are unable to impose gas taxes 

in addition to or in lieu of those imposed by surrounding States. 

The only practical solution we see for this problem is that since 

roads on the BIA system are considered Federal roads, the BIA 

road maintenance program should be provided extra funds out of 

the Highway Trust Fund as are other Federal Lands Highway program roads. 

Mr. Chairman, we, too, have some success stories, and I have 

outlined those in my written testimony, so I won’t touch on those 

now. Like I say, they are outlined in my written testimony. 

In conclusion and on behalf of the Red Lake Band, I thank the 

Committee for its attention to and support of the Indian Reservation Roads program. We have attempted to provide the Committee 

with a few examples of what tribes can do for themselves when 

Federal law is reformed to give us the opportunity and authority. 

59

We thank this Committee for its support of our endeavors over 

the years to become self-sufficient and self-governing. We look forward to working closely with the Committee in the future to further the cause of tribal self-governance and self-sufficiency, and the 

preservation of government-to-government and sacred trust responsibilities owed to us. 

Thank you for inviting the Red Lake Band to present this testimony, and if we can answer any questions now or sometime in the 

future, please do not hesitate to ask. 

Thank you. 

[The prepared statement of Mr. Garrigan follows:]

PREPARED STATEMENT OF JAMES GARRIGAN, TRANSPORTATION PLANNER, RED LAKE

BAND OF CHIPPEWA INDIANS

Introduction 

Good morning, Mr. Chairman and Members of this Committee. My name is James 

Garrigan, Transportation Planner for the Red Lake Band of Chippewa Indians. I am 

also a member of the Indian Reservation Roads Coordinating Committee formed by 

various Indian Tribes to help shape Federal policy and practice in this area. 

On behalf of our Chairman, the Honorable Floyd Jourdain, and the Tribal Council 

of the Red Lake Band of Chippewa Indians, I wish to convey our sadness at the 

loss of Senator Thomas last month and our sympathy to his family and colleagues 

here. He was a great friend of Indian Tribes and will be missed. 

On behalf of Chairman Jourdain, the Red Lake Tribal Council, and the people 

they represent who reside on the Red Lake Indian Reservation in Northern Minnesota, I thank you for this opportunity to provide testimony concerning Transportation Issues in Indian Country. 

The Federal Lands Highway Program and the Indian Reservation Roads Program 

represents for us a major avenue through which the U.S. Government fulfills its 

trust responsibilities and honors its obligations to the Red Lake Band and to other 

Indian Tribes. This program is vital to the well being of all Native people living on 

or near Indian lands throughout the United States. Because of its great importance, 

reform of the Indian Reservation Roads Program has become a top legislative priority for many Indian Tribes. 

Background on the Red Lake Indian Reservation 

Compared to other Tribes, Red Lake is a medium-sized Tribe with more than 

9,500 enrolled members, most whom live on our Reservation. The Red Lake Indian 

Reservation is located in a rural area within the boundaries of the State of Minnesota. Our Reservation has over 840,000 acres of tribal land and water held in 

trust for our Tribe by the United States. While over time it has been diminished 

from its original 15 million acres, our Reservation has never been broken apart or 

allotted to individuals and lost to non-Indians. Nor has our Reservation ever been 

subjected to the criminal or civil jurisdiction of the State of Minnesota. Consequently, our Tribal Government has a large land area over which our Tribe exercises full and exclusive governmental authority and control in conjunction with the 

United States. At the same time, due in part to our location far from centers of population and commerce, we have few jobs available on our Reservation. While the unemployment rate in Minnesota is only at 4 percent, unemployment on our Reservation remains at an outrageously high level of 74 percent. The lack of adequate 

transportation facilities, communications, and other necessary infrastructure continues to significantly impair economic development and job opportunities. 

The IRR Program and the Indian Self-Determination and Education Assistance Act 

The Red Lake Band of Chippewa has long been at the forefront in efforts to reform Federal transportation programs to better serve the needs of Indian reservations and communities. Although great strides have been made in improving the 

IRR program under TEA–21 and SAFETEA–LU, several issues have arisen that 

that are negatively affecting the full implementation of the provisions of these Acts 

as intended by Congress. 

Nine years ago Red Lake led tribal lobbying efforts to shape TEA–21 to allow Indian Tribes greater opportunity to assume and administer the Indian Reservation 

Roads (IRR) Program pursuant to the Indian Self-Determination and Education AsVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00063 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
60

sistance Act (ISDEAA or P.L. 93–638). The tribal TEA–21 reform effort aimed at 

removing many obstacles that hampered past attempts by Tribes to administer the 

IRR Program under P.L. 93–638 Self-Determination or Self-Governance Agreements. In response, Congress added express language to TEA–21 authorizing Tribes 

to assume all roads programs, functions, services and activities under P.L. 93–638 

agreements. But this congressional intent was thwarted by a Bureau of Indian Affairs (BIA) engineering bureaucracy reluctant to transfer operational power and responsibility to Tribes. I know this for a fact. In a previous life, I worked within the 

BIA bureaucracy. I left it to go work for my Tribe. There was no good reason why 

my Tribe and tribal staff could not do what the BIA and BIA staff had done. But 

trying to pull that money out of the BIA bureaucracy was an exercise in futility for 

years. 

The Wasteful ‘‘Six Percent’’ Problem 

For years, the BIA leadership persuaded congressional appropriators to add a 

rider to annual funding bills that reserved 6 percent of the Indian roads/bridges appropriations for BIA administrative and programmatic expenses. Increasingly, more 

and more Tribes like Red Lake argued that the BIA activities being paid for with 

these 6 percent funds were duplicative and unnecessary, and were siphoning off dollars to support a Federal bureaucracy rather than to construct roads critically needed on Indian reservations. 

When Congress drafted SAFETEA–LU, it adopted most of the provisions sought 

by tribal leaders. But unknown to the Tribes, the BIA quietly persuaded the Senate 

to add in Section 1119(e) a new provision, codified at 23 U.S.C. 202(d)(2)(F)(i), which 

allocates $20 million for FY 2006, $22 million for FY 2007, $24.5 million for FY 

2008, and $27 million for FY 2009 to the BIA ‘‘for program management and oversight and project-related administrative expenses.’’ This is nearly 6 percent of the 

Indian roads funds. The BIA cannot justify continuing to consume these funds in 

an era of self-determination and self-governance. The BIA workload should be going 

down, not rising. We ask that this Committee work to repeal that subparagraph 

(F)(i) as soon as possible. 

Red Lake has steadily bargained year after year, successfully taking more and 

more of its 6 percent money back from the BIA. But Red Lake is only one of a handful of Indian Tribes who have succeeded in obtaining nearly 100 percent of their 

funding from the BIA. Most other Tribes continue to see their roads and bridges 

project and program funding reduced by 6 percent or more to fund the BIA bureaucracy and unnecessarily duplicated services. This carte blanche funding guarantee for 

the BIA bureaucracy should be stripped out of the law and forever banned. It serves 

no public policy purpose and cannot be justified on grounds of anything other than 

the status quo and avoiding necessary reorganization and restructuring of the BIA 

bureaucracy. 

Need to Move the Money 

Red Lake and other Tribes who initially assumed the IRR program under SelfGovernance worked closely with Interior’s Office of Self-Governance to design a financial system that provided Tribes with an efficient way to track their revenues 

and expenditures of IRR funds. This system worked exceptionally well. Tribes entered and tracked expenditures, and were able to efficiently prepare financial reports in real time on a project by project basis. This system gave both tribal and 

Federal officials useful monitoring and management information. Inexplicably, the 

BIA 2 years ago deemed this system unacceptable. It directed the OSG to stop using 

it and the BIA then reassumed all financial reporting responsibilities through its 

Federal Finance System (FFS). Since then Tribes no longer have the same degree 

of access to the roads finance system nor do they receive regular financial reports. 

Indian Reservation Roads Inventory and Its Impact on Funding 

Under the negotiated rulemaking process required by TEA–21, Indian Tribes and 

the Federal agencies negotiated new rules (25 CFR 170) by which the IRR program 

would operate. These rules provide the process by which Tribes and the BIA update 

the inventory of roads and bridges on the IRR system. The negotiated rulemaking 

process took 41⁄2 years to complete and it took the BIA another 21⁄2 years to publish 

a final rule. Upon publication of the final rule, we were dismayed to discover that 

the BIA unilaterally left out or changed critical language affecting the inventory 

that was included in the proposed rule. The BIA has never explained why it decided, 

without consultation or involvement of the Tribes, to remove or change regulatory 

provisions proposed by the tribal negotiation team that would improve the integrity 

of the inventory system. 

The final rules allow Tribes to include State and County roads in their inventory 

if the routes are located within or provide primary access to Reservations or Indian 

61

lands. The proposed rules negotiated by Tribes likewise allowed these routes to be 

included in the inventory, but did not include these routes in the cost to improve 

calculations. The proposed rule asked the question—‘‘Which Roads Are Included in 

the Cost to Improve Calculations?’’ The answer was very specific—‘‘Existing or proposed roads in the BIA system which are considered to have a construction need by 

Indian tribes are included in the cost to improve calculations. Tribes must adhere 

to certain guidelines in the selection of those roads. Those roads must: (1.) be on the 

Indian Reservation Road system; (2.) not belong to or be the responsibility of other 

governments (i.e. States or counties) . . ..’’ BIA removed this language from the final 

rule and the BIA is now allowing Tribes to include Interstate Highways, National 

Highway System roads, State and County roads that are in the inventory to generate tribal shares of IRR funding at the same cost to improve rates that fund roads 

that are the sole responsibility of the BIA. 

It is our understanding that the Indian Reservation Roads Program was established by Congress primarily to fund the construction of roads and bridges on Indian 

reservations due to the fact that these roads and bridges are considered Federal 

Roads and it is the Federal Government’s responsibility to construct and maintain 

these facilities on Indian reservations. We believe that the IRR program should primarily address the construction and improvement needs of roads that are located 

within or provide primary access to Indian lands and that are not eligible for other 

Federal, State, or County funding sources. The final rule makes a lot more Federal, 

State and County supported roads eligible for IRR funding, if an Indian Tribe timely 

submits the data information required to place a highway on the IRR inventory system. While Congress and the Administration have substantially increased IRR funding, the number of roads that are eligible for funding has been increased at the 

same time. Some of these roads are eligible for substantial sources of other funding. 

As a result, roads for which the only source of funding is IRR funding are receiving 

a smaller slice of the bigger funding pie. This is compounded by the fact that many 

Tribes have yet to submit their expanded inventory data under the final rules; 

meanwhile, other Tribes have added their expanded data. The result is that those 

Tribes with expanded inventory data realize an increase in their relative share of 

IRR roads funding while those Tribes who lag behind in data entry suffer a drop 

in funding. 

When Congress enacted Section 1115 (k) of P.L. 105–178 (TEA–21), we believe it 

intended that non-BIA or non-Tribal roads within or accessing an Indian reservation 

were to be included in the Indian Reservation Road Inventory to generate only part 

of the funding needed to improve those roads. Otherwise, the County, State and 

other Federal highway budgets would get a windfall. The law is quite specific: ‘‘ . . . 

[F]unds authorized to be appropriated to carry out the Federal lands highways program under section 204 may be used to pay the non-Federal share of the cost of any 

project that is funded under section 104 and that provides access to or within Federal or Indian lands.’’ 23 U.S.C. 120(k). We believe this means IRR funds can only 

be used to pay the non-Federal share on a state or county route is if it is project 

funded under 23 U.S.C. 104 and that it is a designated IRR project. 

The unilateral BIA decision on the final rule favors those tribes who are located 

near urban areas, where transportation needs are the shared responsibility of tribes 

and their neighboring governments and where the Indians are overwhelmingly outnumbered by non-Indian users of these roads. The BIA system for on reservation 

roads has a documented construction backlog of $13 billion. In the face of that need, 

the BIA’s unilateral final rule has the result of siphoning off scarce IRR dollars from 

areas where the greatest need exists. 

Rural Tribes, including large land-based Tribes, have expressed their concerns in 

writing to the BIA and the IRR Coordinating Committee regarding changes to the 

final rule that have altered the intent of the negotiated rulemaking process. To date, 

they have received no responses addressing their concerns. 

Need for a Tribal Transportation Facility Inventory That is Truly ‘‘Comprehensive’’

The Federal Highway Administration (FHWA) has failed to meet the intent of 

Section 1119(f) of SAFETEA–LU regarding the conduct of a ‘‘comprehensive’’ National Tribal Transportation Facility Inventory. Despite the mandatory nature of 

this statutory requirement, FHWA has decided to conduct merely a ‘‘windshield survey’’ sampling of IRR roads. This approach and methodology falls far short of the 

statutory requirement. We urge the Congress to insist that FHWA complete a ‘‘comprehensive’’ inventory of the IRR system as intended. 

62

Road Maintenance 

Protection of the investment in any type of infrastructure requires proper maintenance. Historically, the IRR maintenance system has been chronically under-funded 

which has caused safety hazards and premature failure of many roads on the IRR 

system. Roads usually have a 20 year design life but, because of inadequate maintenance, many of the IRR system roads last only about half of their design life and 

have to be reconstructed much sooner. The BIA is responsible for maintaining IRR 

system roads; however the funding BIA provides is approximately 25 percent of 

what is required to properly maintain the system. The IRR maintenance situation 

has become even more critical with the increase of IRR funding through SAFETEA–

LU. While IRR construction funding is increasing, BIA road maintenance funding 

is declining. The BIA receives approximately $25 million per year as part of its lump sum ap- propriation for IRR road maintenance activities. BIA now estimates that $120 million per year is actually what is needed to properly maintain roads on the BIA system. At present levels, the BIA spends less than $500 in maintenance funding per 

mile; most state transportation departments spend approximately $4,000 to $5,000 

per mile each year on maintenance of state roads. Of course, states receive highway 

taxes based upon the sale of gasoline within that state. While users of tribal roads 

pay these same state highway fuel taxes, tribal roads receive little or no benefit 

from state fuel taxes. Tribes are unable to impose gas taxes in addition to, or in 

lieu of, those imposed by the surrounding states. 

The only practical solution we see for this problem is that since the roads on the 

BIA system are considered Federal roads, the BIA road maintenance program 

should be provided extra funds out of the Highway Trust Fund as are other Federal 

Lands Highway Programs roads. 

Red Lake Decision to Stay With BIA/OSG and Postpone FHWA Agreement 

After much deliberation in 2006, Red Lake decided not to contract directly with 

Federal Lands Highway Administration for our 2007 roads program. As you know, 

one of the signature reforms in SAFETEA–LU was express authority for Tribes to 

choose to by-pass the BIA and contract directly with FHWA. We negotiated with 

FHWA staff but at the end decided to defer the decision to a later year because of 

several issues. We were unable to negotiate agreement language to our satisfaction 

by the time we needed to conclude an agreement for 2007 without causing disruptions to our program. FHWA had only a draft agreement and appeared to be requiring a uniformity that subjected any proposed change to broad review with every 

other tribe actually or potentially in negotiation. FHWA and BIA had not yet persuaded us the two Federal agencies had worked out an efficient process by which 

the funds due Red Lake would be identified and transferred to Red Lake; we did 

not want to risk missing a construction season because of late or disrupted new 

funding streams. At the same time, it appeared from statements made by then Acting Assistant Secretary Jim Cason, that BIA would move the financial management 

authority for self-governance roads programs back under the Office of Self Governance and utilize the financial management and reporting system that Red Lake and 

other Tribes had developed. This system expedites the transfer of funds and gives 

us the ability to enter program expenditures by project, making tracking and reporting expenditures much more easy and useful. 

Moreover, the Department of Transportation still has not appointed the Deputy 

Assistant Secretary for Tribal Government Affairs that the SAFETEA–LU Act requires to be established by the President within the Office of the Secretary. This 

new office is supposed to ‘‘plan, coordinate, and implement the Department of 

Transportation policy and programs serving Indian tribes and tribal organizations 

and to coordinate tribal transportation programs and activities in all offices and administrations of the Department and to be a participant in any negotiated rulemaking relating to, or having an impact on, projects, programs, or funding associated with the tribal transportation program.’’ The Administration’s failure to timely 

fill this FHWA position has given the Red Lake Band pause about establishing a 

direct relationship with that agency. We choose to avoid any possible entanglement 

which might disrupt our own administration of our tribal roads program. 

All this is to explain why we did not jump in 2007 to contract directly with 

FHWA. Red Lake remains very interested in doing so in the future. 

Tribal Success Stories 

Operating the IRR Program under Self-Governance. The Red Lake Band will soon 

be entering its tenth year of operating the IRR program under Title IV of P.L. 93–

638, the Self-Governance Act. Self-governance has provided the Tribe the ability to 

deal with State agencies on a government-to-government basis and to leverage fundVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00066 Fmt 6633 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
63

ing for projects that are of mutual interest to both the Tribe and the State. After 

years of expensive and strenuous negotiating, we can now say we’ve reduced the 

BIA administrative funding holdback to nearly zero. During this time, of course, we 

have been doing all of the work. The Tribe makes the day to day decisions in all 

phases of the program including review and approval of construction plans, specification and estimate of road construction projects. The Tribe uses its own procurement guidelines in contracting construction projects from the letting of bids, negotiating contracts, to close out of projects. Our relationships with Minnesota Department of Transportation have improved to the point where the State has enacted special legislation to contract directly with all Tribes in the State. The Tribe has also 

been successful in collaborating with other Federal agencies including working with 

the Department of Defense, HUD and the Tribe’s own construction company to complete a $10 million Walking Shield housing development project which resulted in 

over 50 homes for tribal members on our Reservation. Our flexible authority under 

self-governance permitted us to apply some of our roads funding to develop roads 

for this tribal priority project. Weare thankful that the Congress has recognized that 

Tribes are very capable of operating their own programs for the benefit of their people without the BIA bureaucracy. 

Tribal Transit. Many tribal governments place a high priority on building transit 

systems that can transport their members who do not have access to cars to get to 

work, commerce, recreation, or healthcare facilities. Thanks to SAFETEA–LU, 

Tribes recently became eligible to receive direct grants from the Federal Transit Administration (FTA) for the operation of public transit programs to serve Indian Reservations. While the new program is small compared to other transit programs, Red 

Lake is grateful to be selected to participate in the first ever direct grant to Indian 

Tribes and will continue to work to expand this program for the benefit of others. 

Since 2001, the Red Lake Band has been operating a Public Transit program funded 

with FTA grants through the Minnesota Department of Transportation and supplemented with IRR funds. This program started with one, 20-passenger, transit bus 

and now has expanded to four busses. We were recently notified that we were 

awarded a direct grant from the FTA in the amount of $198,000. These funds will 

be used to replace the IRR program funds that we sorely need to address the backlog of road construction needs on our Reservation. 

Flexible Financing. The Red Lake Band of Chippewa was among the first Tribes 

to utilize the authority granted by TEA–21 and 25 CFR 170.300 to secure a short 

term loan from a commercial lending agency to complete a high priority roads 

project on our Reservation. We closed on the loan last year. That enabled us to complete our project and immediately meet an urgent need on the Reservation. Because 

we kept it a short-term loan, we did not encounter some of the complications other 

Tribes experienced. The loan will be paid back with IRR funding from within the 

years authorized under SAFETEA–LU. 

Conclusion 

On behalf of the Red Lake Band, I thank the Committee for its attention to and 

support for the Indian reservation roads program. We have attempted to provide the 

Committee with a few examples of what Tribes can do for themselves when Federal 

law is reformed to give us the opportunity and authority. We thank this Committee 

for its support in our endeavors over the years to become self sufficient and selfgoverning and we look forward to working closely with this Committee in the future 

to further the cause of tribal self-governance, self-sufficiency, and the preservation 

of the government-to-government and sacred trust relationship owed to us. Thank 

you for inviting the Red Lake Band to present this testimony. If we can answer any 

questions, now or at some future date, please do not hesitate to ask.

The CHAIRMAN. Mr. Garrigan, thank you very much. 

Finally, we will hear from Mr. Erin Forrest, who is with the 

Hualapai Nation of Peach Springs, Arizona. 

Is it Hualapai or Hualapai? 

Mr. FORREST. Hualapai. 

The CHAIRMAN. Hualapai. I apologize. 

Mr. Forrest, thank you for joining us, and you may proceed. 

64

STATEMENT OF ERIN FORREST, DIRECTOR OF PUBLIC 

WORKS, HUALAPAI NATION 

Mr. FORREST. Good morning, Mr. Chairman and Members of the 

Committee. My name is Erin Forrest, and I am the Director of 

Public Works for the Hualapai Nation. I have held that position for 

about 4 years. The job responsibilities are to maintain the public 

roads, maintain the public buildings and the public utilities. 

The Hualapai Tribe has about 2,042 enrolled members, of which 

about 1,300 live on the reservation. The reservation is about 1 million acres in size, and is located in northern Arizona and lies between Flagstaff and Kingman, for those who are familiar with Arizona. Kingman is the closest center to provide goods and services 

to the Hualapai Tribe and lies about 50 miles away. 

There are 660 miles of roads to maintain on the reservation, of 

which 72 miles are paved; 236 miles are improved gravel; and 352 

miles are considered unimproved. The Bureau of Indian Affairs had 

the responsibility of maintaining those roads until about 15 years 

ago. The tribe through a self-determination 638 contract took over 

the road maintenance responsibilities at that time. 

The BIA then transferred their maintenance budget over to the 

tribe to maintain those roads. During the last 4 years, the road 

maintenance budget has decreased and the roads are falling into 

disrepair. In fact, we are being told to expect another decrease in 

next year’s budget. The cost of fuel, labor and equipment and road 

materials is growing annually, and the tribe cannot provide proper 

maintenance for the roads with declining funding levels. 

About half of the 72 miles of paved road are located within the 

community of Peach Springs itself. These roads were paved in the 

1970’s. There has not been any preventive maintenance such as 

overlays, seal coats, chip sealing or crack sealing in over 30 years. 

The other paved road on the reservation is Route 18, which is 

also known as the Supai Road. This road crosses the Hualapai Nation and it is also the only viable access to the Supai Reservation. 

This road was paved in 1971 and has not received any overlays or 

chip sealing in 36 years. 

Both of the above roads are now experiencing pavement failures 

such as extreme alligatoring that now allows moisture into the 

subgrade and can cause total pavement failure. I have a couple of 

pictures of the Supai Road. In it, you can see almost total failure 

along the center line, along the pavement seams, and excessive 

alligatoring and patching in the driving lanes. 

I might turn it around and show the audience. That is the Supai 

Road that crosses the Hualapai Nation. This is very typical along 

that route. 

Also on the reservation we have 236 miles of roads on the reservation that are gravel, including the heavily traveled Diamond 

Creek Road. This road provides the only vehicle access to the Colorado River in the Grand Canyon between Lee’s Ferry and Lake 

Mead, which is about a distance of 200 miles. This road is used for 

transporting river rafters and is essential to tribal tourism enterprises. 

Starting in Peach Springs, this 18 mile long road drops from an 

elevation of 4,500 feet to 1,500 feet at the Colorado River. This 

road washes out an average of three times per year from flash 

65

floods. Due to the importance of the road to tourism, it is a very 

high priority to reopen the road after it has washed out. This effort 

usually takes the Hualapai road crew about 3 days to open it back 

up and in extreme instances it can take up to a week to open this 

road up. 

I have some pictures of this particular road, which is again the 

only access to the Colorado River for over 200 miles. The first one 

I think shows where you are going down the wash, and it shows 

the boulders and what not, and the wash bottom. The second picture shows where the walls of the canyon are starting to encroach. 

If you look up to the upper left portion of that picture, you can 

see the high walls of the canyon getting higher and higher above 

you. At the time it enters into the canyon excuse me, by the time 

it gets to the river, it is about 4,000 feet deep. It also shows a 

stream that goes down the middle of the road with the walls enclosing on each side. 

I might note that these pictures were taken a couple of weeks 

ago. That area is in a 12 year drought. The creek is much lower 

than normal. It is usually at this time of year running more full, 

but when a storm event occurs, when we get a thunderstorm in the 

summertime, the water is stretched from wall to wall. 

I think the next picture shows it further downstream, about a 

half mile actually from the Colorado River, and the walls are again 

steeper and enclosing more along the road. The road now is the 

creek bottom. There is no way to get the road away from the creek. 

It will get washed out every time we get a storm event upstream. 

As the primary Western Region member of the IRR Coordinating 

Committee, it is my responsibility to bring to your attention the 

IRR program issues affecting the Western Region and the program 

as a whole. My testimony is organized by six categories, my written 

testimony, which includes finance, safety, road maintenance, congestion, tribal consultation and safety project successes. 

At this time, I will review only the recommendations. We have 

nine recommendations. One is to increase annually funding levels 

for the IRR road program to expand the purchasing power and to 

attend to the numerous unmet needs. I might note that during the 

SAFETEA–LU process, Congress—and we thank you very much—

gave an increase of about 10 percent per year during that funding 

cycle. 

I might also note to you that in the State of Arizona, that due 

to the very high growth rate and increasing costs of asphalt and 

concrete and construction materials, the inflation rate for road construction in the State of Arizona rose at a rate of about 15 percent 

a year. So even with your generous increases, we are still falling 

behind the curve in road construction. 

The next line we have is to reinstate full authorization for the 

IRR road program by eliminating the ‘‘lop off’’ for obligation limitation. We feel that the ‘‘lop off’’ doesn’t make sense in Indian Country. We are not getting enough money as it is. It may make sense 

when you deal with States, but it does not make sense in Indian 

Country. 

We would like to establish and provide a $20 million startup 

fund for an IRR loan program similar to the State Infrastructure 

Banks. We would like to institutionalize a process for the reliable 

66

collection of data to quantify road maintenance needs. We would 

like to develop and implement a safety management system for the 

IRR program. 

We would like to streamline a process between the BIA Division 

of Transportation, BIA Highway, Safety Office and the BIA Law 

Enforcement to manage transportation safety. We would also like 

to increase the funding level for the BIA Road Maintenance Program to meet the safety needs and to protect the IRR investments. 

We would like to require any federally funded transportation 

project on tribal lands to be included in the Tribal Transportation 

Improvement program. And last, we would like to expand the tribal 

consultation requirements for the States and metropolitan planning 

organizations to include consultations on all federally funded 

projects, in addition to statewide planning and programming, and 

the long-range transportation plan. 

Mr. Chairman, this concludes my testimony. I know my time is 

up, but I would like to make just one more point if I could. I have 

only worked in Indian Country for 4 years. I worked in a consulting practice as an engineer for 20 years. I was a city engineer 

at the city of Pasco, Washington for 4 years, and I worked for the 

Port of Bellingham in the State of Washington for 10 years. 

When I worked at the port, there were many avenues for revenue 

that we had, that was available to the port to provide for infrastructure improvements. We were in a totally preventive maintenance program. We did a lot of overlays every year and the infrastructure was in very good shape. 

When I was a city engineer at the city of Pasco, basically we divided up the city road miles. We divided by 20 and we overlaid onetwentieth of the roads every year. Again, they had B&O tax, they 

had property tax, they had transportation impact fees. They had 

good sources of revenue to help maintain their roads. 

I might note that since I have worked for the tribe, the only 

source of revenue is directly from the tribe itself and/or the Federal 

Government. It is like working in a Third World country. I feel like 

I am working in the Peace Corps or something. There is not enough 

money. 

With that, I will concluded and would be pleased to answer any 

questions from the Committee. 

[The prepared statement of Mr. Forrest follows:]′′

PREPARED STATEMENT OF ERIN FORREST, DIRECTOR OF PUBLIC WORKS, HUALAPAI

NATION

I. Introduction 

Good morning. My name is Erin S. Forrest. I have been employed as the Director 

of Public Works for the Hualapai Tribe for nearly 4 years. I am responsible for 

maintaining the public utilities, public buildings and the public road system for the 

Hualapai Tribe. 

The Hualapai Tribe has 2,042 enrolled tribal members with approximately 1,300 

residing on the reservation. The one million acre reservation is located in northwestern Arizona, midway between the cities of Flagstaff and Kingman. Kingman is 

the closest center of services and is 50 miles to the west. 108 miles of the reservation borders the Colorado River. 

Hualapai Tribal Road Maintenance Program 

660 miles of roads on the Hualapai Reservation need to be maintained on a regular basis. According to the Indian Reservation Roads (IRR) Inventory, 72.5 miles 

67

or 11 percent of the roads are paved; 236 miles or 36 percent of the roads are gravel; 

and the remaining 352 miles remain unimproved. 

The Bureau of Indian Affairs (BIA) was responsible to maintain these roads. However, about 15 years ago, the Hualapai Tribe entered into a Public Law 93–638 selfdetermination contract with the BIA to maintain the roads. The BIA has transferred 

to the Hualapai Tribe the road maintenance responsibilities and annual maintenance funds to service the roads. During recent years, the BIA road maintenance 

budget has decreased and the roads are slowly falling into disrepair. 

Over half of the 72 miles of paved roads on the Hualapai Reservation are in the 

town of Peach Springs, the remaining miles are on the IRR Route 18 to Supai. The 

roads in Peach Springs were paved in the 1970’s. IRR Route 18 was paved in 1971. 

None of these roads have received any preventive maintenance, such as overlays, 

chip seals, or crack sealing. Therefore, the roads are now experiencing pavement 

failure, such as extreme alligatoring that allows moisture into the sub-grade and 

causes total pavement failure. 

The following three photos were recently taken to document the road conditions 

on IRR Route 18.

Diamond Creek Road 

Over 236 miles of roads on the reservation are gravel, including the heavily traveled Diamond Creek Road. This road provides the only vehicle access to the Colorado River in the Grand Canyon between Lee’s Ferry and Lake Mead (distance of 

over 200 miles). This road is used for transporting river rafters and is essential to 

tribal tourism enterprises. 

Starting in Peach Springs, the l8-mile road drops from an elevation of 4,500 ft. 

to 1,500 ft. at the Colorado River. This road washes out an average of three times 

per year from flash floods. Due to the importance of the road to tourism, it is a high 


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priority to reopen the road after it has washed out. This effort usually requires all 

the Hualapai road maintenance personnel over 3 days work to open it back up. 

The following four photos show the gravel road conditions on Diamond Creek 

Road.

With the cost of fuel, labor and materials growing annually, the Tribe cannot provide maintenance of their roads with the declining funding levels. The lack of funding is a hardship for the Tribe and affects the economic, social and physical well 

being of the Tribe. Hindrances include the transport of goods and services; bus 

routes for the youth; transport of the elderly and sick; and the increased emergency 

medical services response time. These are all great concerns to the tribal leaders 

who are trying to provide for their people. 

As the primary Western Region (WR) member of the IRR Program Coordinating 

Committee, it is my responsibility to bring to your attention the IRR Program issues 

affecting the WR and the program as a whole. My testimony is organized by six categories—finance, safety, road maintenance, congestion, tribal consultation and safety project successes. Recommendations, with supporting statements, have been provided for each topic. Examples are from Arizona, one of three state areas in the WR. 

At this time, I will review only the recommendations. 

II. Recommendations 

As tribal governments in Arizona work to improve the transportation network on 

tribal lands, numerous matters related to finance, safety, road maintenance, congestion and tribal consultation are being encountered. Infrastructure systems support 

society. The tribal transportation system plays a key role in the economy, security 

and the safety of the public at large. Recommendations to improve the IRR program 

are:

• Increase, annually, funding levels for the IRR program to expand the purchasing power and to attend to the numerous unmet needs.

• Reinstate full authorization for the IRR program by eliminating the ‘‘lop off’’ for 

obligation limitation.

• Establish and provide $20 million start-up funds for an IRR loan program, similar to the State Infrastructure Banks.


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• Institutionalize a process for the reliable collection of data to quantify road 

maintenance needs.

• Develop and implement a Safety Management System for the IRR program.

• Streamline a process between the BIA Division of Transportation, BIA Highway 

Safety Office and BIA Law Enforcement to manage transportation safety.

• Increase the funding level of the BIA Road Maintenance Program to meet the 

safety needs and to protect the IRR investments.

• Require any federally funded transportation project on tribal lands to be included in the Tribal Transportation Improvement Program.

• Expand the tribal consultation requirements for the States and Metropolitan 

Planning Organizations (MPO) to include consultation on all federally funded 

projects, in addition to statewide planning and programming, and the Long 

Range Transportation Plan.

A. Finance 

Purchasing Power

• Increase, annually, the funding levels for the IRR program to expand the purchasing power and to attend to the numerous unmet needs.

All governmental transportation programs have been losing purchasing power. 

Even with the increased funding level from the Safe Affordable Flexible Efficient 

Transportation Equity Act: A Legacy for Users, the tribal governments, utilizing the 

IRR program funds, cannot meet their responsibilities. 

The American Association of State Highway and Transportation Officials 

(AASHTO) published a report entitled, Transportation: Invest in Our Future, to assist the National Surface Transportation Policy and Revenue Study Commission. 

The Commission was charged to study the needs of America’s surface transportation 

system and sources of revenue for at least the next 30 years. The following paragraph is a quote from the AASHTO report describing the challenge:

Commodity prices for steel, concrete, petroleum, asphalt, and construction machinery increased dramatically from 2004 to 2007. As a result it is estimated 

that between 1993, the year in which Federal fuel taxes were last adjusted, and 

2015, construction costs will have increased by at least 70 percent. To restore 

the purchasing power of the program, Federal highway funding will have to be 

increased from $43 billion in 2009 to $73 billion by 2015. To restore the purchasing power of the transit program, Federal funding would have to be increased from $10.3 billion in 2009 to $17.3 billion in 2015.

Lopping off for Obligation Limitation

• Reinstate full authorization for the IRR program by eliminating the ‘‘lop off’’ for 

obligation limitation.

The appropriations process has been the traditional process for controlling annual 

Federal expenditures. However, for transportation spending, a budgetary control 

mechanism, referred to as Obligation Limitation, has been imposed. 

Within the larger, national transportation program, the IRR program is a relatively small program. The portion of funds for the IRR program is less than 1 percent of the annual total in guaranteed obligation authority for the surface transportation program, which is approximately $50 billion. 

Prior to the enactment of the Transportation Equity Act for the 21st Century 

(TEA–21), the IRR program was exempt from Obligation Limitation. The lopping off 

of 9 to 14 percent from the current IRR program for obligation limitation is a significant reduction of spending authority for tribal transportation, which is already severely underfunded. Limited funds are directly impacting the safety and wellbeing 

of the general public, as well as American Indian citizens. 

Innovative Finance

• Establish and provide $20 million start-up funds for an IRR loan program, similar to the State Infrastructure Banks (SIB).

Similar to states governments, tribal governments are dealing with limited resources and inflation issues. The annual inflation costs in Arizona for labor and materials are estimated between 10 to 25 percent. Therefore, tribal governments are 

beginning to view low-interest loans and construction advancement as viable strategies for efficiently planning and completing transportation projects. 

SIB operate similar to banks, offering financial assistance thru loans or credit enhancements for eligible projects. As the loans are repaid, the SIB is replenished, 

70

moneys re-loaned, leading to the SIBs’ sustainability. Thirty-two states have active 

SIB, although all may create them. 

An IRR SIB could provide assistance in two ways: (1) loan guarantee program—

a pool of money that the state SIB could access in case of defaults and/or (2) loan 

program—a source of funds to lend to tribal governments. Tribal governments could 

use the IRR tribal allocations and other sources to repay the loans. More importantly, the BIA would be ensured of repayment, because IRR tribal allocations could 

be withheld, if the tribal government defaulted on payments. 

In 1998, the Arizona SIB, Highway Expansion and Extension Loan Program 

(HELP), was established to bridge the gap between transportation needs and available revenues. Tribal governments are eligible borrowers for the low-interest loans. 

However, four HELP requirements have proved challenging for full tribal participation. The topics of tribal concern have been: (1) waiver of sovereign immunity, (2) 

dispute resolution in state court, (3) creation of transportation authorities or limited 

liability corporations (LLC), and (4) disclosure of tribal government assets. In addition, Federal and Arizona laws specify that the Federal SIB dollars are intended to 

improve the Federal Aid System, State Routes, the National Highway System, and 

the State Highway System, and not the BIA or tribal road systems. 

Tribal solvency is a major issue for Arizona Department of Transportation 

(ADOT). In the case of local governments, ADOT provides them revenue from the 

vehicle fuel sales. These funds can be withheld, should a local government default 

on a loan payment. Unlike local governments, tribal governments are not eligible 

to receive revenue from the sales of vehicle fuel in Arizona. Therefore, ADOT requires the tribal establishment of LLC. Although, the LLC can be established under 

tribal codes, ADOT prefers state-chartered corporations, because disputes would 

then be resolved in state courts, not tribal courts. 

Tribal members and governments are eligible to receive reimbursements for only 

vehicle fuel taxes. Three tribal governments in Arizona have negotiated agreements 

with ADOT. However, a portion of the remaining tribal governments has not applied 

because there are no gas stations on the reservations or the negotiations have not 

delivered results. 

It is quite unfortunate that SIB exist, and yet are not structured to benefit all 

governments with low interest loans. Some tribal governments in Arizona have negotiated loans from banks where tribal funds are deposited. The Inter Tribal Council of Arizona is assisting the tribal governments and the Arizona Commerce and 

Transportation agencies to explore alternatives to replace the current requirements. 

B. Safety 

Arizona has been recognized as an ‘‘opportunity state’’ by the Federal Highway 

Administration, U.S. Department of Transportation. A state that has had a motor 

vehicle crash (MVC) mortality rate consistently higher than the national MVC mortality rate and has the ‘‘opportunity’’ to make strides in transportation safety. 

American Indians in Arizona are a population at risk for injuries and fatalities 

associated with MVC. Young American Indian men, between the ages of 15 and 35 

years, are most at-risk. In Arizona, MVC injury and mortality rates for American 

Indians have been consistently higher than the statewide rates over the last 25 

years. 

The 1998–2005 estimated economic losses for American Indian in Arizona totaled 

approximately $904,431,000. This estimate is based on combined information from 

the National Safety Council (for fatality estimates) and the Arizona Department of 

Health (for the number of American Indian MVC fatalities for a select portion of 

Tribes). Unintentional injuries sustained from MVC are one of the top five causes 

of death for American Indians in Arizona. 

One of the greatest tribal challenges in Arizona has been the automation and analyzation of tribal crash data. To help tribal governments manage MVC issues requires capacity-building programs involving adequate multi year funding and local 

technical assistance. 

In Arizona, tribal crash data are contained in manual environments. This type of 

system significantly hinders data accessibility and analyses. A manual data system 

may be inexpensive to maintain, but the labor for extracting and organizing the 

data is expensive. In depth crash analyses, identifying high crash locations and causation, are not being completed on a regular basis. The BIA Highway Safety Office 

(BIAHSO) documented the needs in the 2005 final report prepared after the first 

national assessment of tribal traffic records. The Indian State Traffic Records Assessment report stated:

Not only must the crash data be accurate, timely and complete, it must also 

be analyzed thoroughly. This means that the data must be accessible. In general, the more difficult the data are to access, the less likely the crash data will 

71

be studied or analyzed in depth. It did not appear that in depth crash data 

analyses were conducted by the tribes.

For Arizonans and American Indians, the overall trends in mortality rates due to 

MVC have decreased over time. However, Figure 1 shows the MVC mortality rates 

for American Indians have remained much higher than the MVC mortality rates for 

the general population in Arizona. 

The MVC mortality rate for American Indians in the U.S. is nearly twice the rate 

for general population. The MVC mortality rate for American Indians in Arizona is 

about four times the rate for the general population in the U.S. Figure 2 illustrates 

the public safety disparity.

Reliable Collection of Data to Quantify Road Maintenance Needs

• Institutionalize a process for the reliable and standardized collection of data to 

quantify road maintenance needs.

The maintenance of roads is a critical transportation safety issue. Sufficient resources are needed for safety improvements, such as: warning and speed signage, 

pavement marking improvements, roadside vegetation removal for clear zones, effective cattle guards, maintained fencing, nighttime retro reflectivity inspections, 

scheduled traffic counts, roadway preservation and pothole filling. In Arizona, adequate maintenance resources to complete low cost safety improvements are key to 

the success of the road safety audits and eliminating roadway and roadside hazards 

on tribal lands. 


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Not all BIA regions and agencies or tribal governments that have contracted or 

compacted maintenance responsibilities are utilizing a standardized maintenance 

management system. The BIA needs funds to advance the use of this technology and 

to make it a requirement of the maintenance program. 

Tribal governments and the BIA Division of Transportation (BIADOT) prepared 

with data could document and justify the need for additional staff, equipment, fuel 

and materials to the Departments of Interior and Transportation and the Office of 

Management and Budget. To collect maintenance data in the WR, the BIADOT has 

completed two equipment studies and initiated a maintenance management system. 

However, full participation by all agencies and tribal governments responsible for 

road maintenance is not occurring. Limited data hampers not only the maintenance 

program, but also diminishes support for transportation safety decisions, such as 

quantifying issues, determining priorities, and targeting resources. 

Safety Management System (SMS) for the IRR Program

• Develop and implement a SMS for the IRR program.

Tribal governments need data assistance from BIADOT and the Federal Lands 

Highway Office to reduce the number of fatalities, injuries and property damage related to MVC on tribal lands. A systematic approach, in conjunction with adequate 

resources, would greatly improve (1) the coordination and safety related activities 

of education, enforcement, engineering, emergency medical services (EMS) and injury surveillance; (2) the collection, maintenance and analyses of traffic records; (3) 

the examination and prioritization of issues or emphasis areas; and (4) the implementation and evaluation of countermeasures. 

As states advance improvements to their safety plans, traffic records, and safety 

programs, the tribal governments, who face the greatest challenges, also need sufficient resources and the program flexibility to protect the public. BIADOT needs to 

proceed to implement this safety management tool and the rules published in February 27, 2004. 

BIA Management of Transportation Safety

• Streamline a process between the BIADOT, BIAHSO and BIA Law Enforcement 

to manage transportation safety.

Nationally, MVC are one of the leading causes of fatalities and injuries for American Indians. The causation of MVC involving American Indians can be linked to 

a backlog of unsafe roads, as well as driver and passenger behavior. 

In Arizona, many MVC occurring on tribal lands involve single vehicles leaving 

the roadway, rolling over and smashing into fixed objects along the roadside. 

Skewed intersections and unattended roadside vegetation limit sight distance for 

the drivers. Wild and domestic animals on the roadway, lack of retro reflectivity 

from the signage and pave markings, and inconsistent or non-existent signage are 

factors contributing to crashes on two-lane rural roads. 

Opportunities to establish or broaden tribal safety projects and programs exist 

thru the Federal Highway Administration (FHWA) and the National Highway Traffic Safety Administration (NHTSA), agencies of the U.S. Department of Transportation. The BIADOT receives funds thru the FHWA and NHTSA funds the 

BIAHSO. However, critical leadership from and coordination between these two BIA 

offices needs to occur. BIA Law Enforcement and Indian Health Service also play 

major roles in transportation safety and coordination with these two agencies is essential. 

Many programs and funding opportunities are not being promoted to the tribal 

governments, departments and safety coalitions, including work with EMS, courts, 

law enforcement, injury surveillance, transportation, education, and substance 

abuse services. Administratively, BIA is contributing to this public health disparity. 

Transportation safety needs to be a priority for the BIA. 

C. Infrastructure Maintenance

• Increase the funding level of the BIA Road Maintenance Program to meet the 

safety needs and to protect the IRR investments.

Maintenance funding levels continue to decrease. The tribal transportation and 

BIA agency staff in the WR have been informed that performance results are not 

being demonstrated by the BIA, so funding levels have been cut. However, staff are 

not familiar with the processes being used by the Federal Government to assess and 

improve agency performance and how this process determines the maintenance 

funding. 

73

According to the 2004 Program Assessment Rating Tool (PART), the BIA operation and maintenance of roads rating was decided on:

1) States, counties and local governments constructed over 38,000 miles of roads 

on reservations, but many refused to use their Highway Trust Funds to reconstruct these roads and bridges or provide adequate maintenance; and

2) The program lacks adequate information on the conditions of the reservation 

roads and bridges.

The Government Performance and Results Act of 1993 (GPRA) Strategic Plan of 

the Department of the Interior for Fiscal Years (FY) 2007–2012 includes a goal to 

advance quality communities for Tribes and Alaska Natives. Public safety was incorporated. The two transportation indicators were acceptable levels (according to 

the Service Level Index) of (17 percent) roads and (51 percent) bridges in 2012. 

The operation of BIA roads was evaluated almost 4 years ago. Assessing road and 

bridge conditions, encouraging states and local governments to meet their road responsibilities and scheduling independent program evaluations does not appear to 

offer immediate outcomes for the remediation of the maintenance needs or result 

in sufficient funding levels to address these serious issues. 

In FY 2006, the Department of Interior appropriated $4.135 million to the BIA 

WR to maintain 5,405 miles of BIA roads and 215 BIA bridges. The WR expended 

$4,178,722 and still didn’t have sufficient funds to address all areas of maintenance. 

According to BIADOT, the default value for optimum road maintenance is $14,000 

per mile. The WR is spending less then $700 per mile. In 2006, maintenance per 

mile costs averaged $636 for paved roads; $510 for gravel roads; and $65 for improved earth roads. Unimproved earth roads are not maintained. 

The IRR bridges within the WR were last inspected in 2005. The inspection identified approximately $3,674,150 of urgent (safety) bridge maintenance needs and another $1,415,299 of non-urgent (routine) bridge maintenance needs. Few bridge 

needs have been addressed. 

Much of the tribal lands within the WR are expansive and the IRR are isolated. 

Staff travel expenses, including fuel and non-productive time, to and from the work 

sites are expensive. $256,239 was spent, in 2006, to get employees to and back from 

the job sites. 

According to a 2005 assessment and inventory of WR equipment, one-third is 

nonnfunctional; one-third is in fair condition; and one-third is operable, but aging 

equipment. Much of the maintenance equipment is 20–30 years old, parts are difficult to acquire or non-existent, and the operating costs per hour are escalating. In 

FY 2006, $455,067 was expended by the WR on equipment operations, but no procurement of new equipment. 

Signage installation per sign has been averaging $250 to $350, depending on the 

grade. Raised reflective pavement markers average $6.50 to $7.50 each. To be effective, markers are needed at 30-foot intervals, especially in unlit areas. Signs and 

raised pavement markers are only being placed or replaced during a construction 

project. On average, staff salaries have accounted for 62–66 percent of the total WR 

maintenance budget. In FY 2006, 1.2 percent of the budget was expended on staff 

training. 

74

2003 WRO Road Maintenance Equipment Inventory

There are 13 agencies within the WR. Seven have full time BIA maintenance operations and the remaining six have BIA and/or tribal maintenance operations. All 

agencies experience severe funding issues and cannot maintain their responsibilities. Following is a description of one of the agencies, as an example of what all 

WR agencies are encountering. 

Fort Apache Agency Road Maintenance Program 

The agency is concerned about the level of service being provided to the tribal government, especially in case of snow removals and fire or flood emergencies. Over 50 

road maintenance activities are the Agency’s responsibilities and are in jeopardy of 

not being accomplished with the current operating budget. Examples include:

• Equipment will not be repaired, leading to further deterioration.

• Fuel for equipment operations cannot be purchased.

• Safety road signs will not be replaced.

• Road striping will not be done.

• No after-hour emergency response or assistance will be available.

• No road patching material will be available.


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• Customer service will be inadequate.

• No coverage for other needs (Salt River Canyon, etc.) will be available.

• Due to a lack of maintenance, reconstruction of roads will accelerate.

• Snow and ice removal response will only take place during regular hours.

In FY 2007, the road maintenance program was funded $475,539 compared to the 

FY 2006 funding level of $514,035. The program had been operating on an annual 

average budget of $800,000 in the 1980’s. 

In 2006, the agency researched the resources available to an ADOT maintenance 

program located on the reservation. The comparison is charted in the following 

table.


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D. Congestion and Hyper-Growth

• Require any federally funded transportation project on tribal lands to be included in the Tribal Transportation Improvement Program.

Arizona is one of the fastest growing states in the Nation. Due to an influx of population in concentrated areas of the state and travel demands, tribal governments 

located in traditionally rural agricultural and forest areas are being impacted by 

residential, commercial and retail development, as much as the local and State governments. 

To alleviate congestion on the arterial access routes, developers, adjacent communities and the state desire to spread the traffic over all the transportation networks. 

As a result of the expanded growth, the tribal governments are subject to encroachment, unwanted traffic, road widening and safety issues. The external circumstances are affecting tribal resources. The Tribes’ IRR program funds are 

stretched to address numerous demands beyond building BIA-owned roads. Tribal 

governments are dealing with numerous external meetings, land use plans, economic development, noise, air quality and archaeological resources encroachment. 

In an effort to squeeze more homes into residential master planned areas, developers are requesting waivers on buffer zone requirements. Some developers are encroaching upon existing rights of way for roadways, as well as reservation boundaries. One example involves 7,500 homes to be constructed on 2,179 acres adjacent 

to the tribal lands and the tribal headquarters. Travel demands, under build-out 


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conditions, are expected to exceed the current two-lane road capacity, so the nearby 

city has proposed a six-lane arterial roadway in their transportation study. 

The map below, provided by the MPO, Maricopa Association of Governments, depicts the Arizona population density for the year 2000 compared to the estimated 

density for year 2050. The red areas represent population growth and the light grey 

areas signify the Indian reservations.

E. Tribal Consultation

• Expand the tribal consultation requirements for the States and Metropolitan 

Planning Organizations (MPO) to include consultation on all federally funded 

projects, in addition to statewide planning and programming, and the Long 

Range Transportation Plan.

The traditional Federal approach to achieving a national surface transportation 

system has been the operation, maintenance and preservation of roads. This has 

largely been accomplished by fostering the Federal-State relationships and dedicating the majority of resources toward States. The hierarchical system is arranged 

so States are responsible for working with the tribal and local governments on the 

statewide transportation programming and planning. 

Planning is a major transportation function. However, the typical planning process is expanding beyond the preparation of road projects to transportation management and decision-making for areas, such as air quality, congestion, and the management of safety, access, incidents, vegetation, data, etc. 

Involvement from both tribal and local governments is crucial for the development 

of these types of activities. However, at these levels, the transportation functions 

and responsibilities vary by jurisdiction, depending on available resources, size, 

transportation priorities, state constitutional arrangements, and responsiveness to 

the political agendas. The States need to appreciate these differences and consider 

the resource limitations, as the consultation processes are developed. 

Largely to engage the local governments, the ADOT has structured working and 

financial arrangements with the MPO and regional councils of governments (COG) 

to conduct regional planning functions. Tribal government in Arizona may not be 

paid member of these associations. A small number of tribal staff participate on 

MPO and COG transportation technical committees. Tribal reasons for not joining 

the associations vary the association priorities may not align with the tribal priorities, tribal votes don’t impact the majority voting outcome, tribal lands may be located in several association areas, etc. 

In 2006, ADOT established a tribal government-to-government consultation policy. 

Since the policy is new, the consultation process is being addressed case-by-case. 

This has been problematic because tribal governments are either not being consulted or being consulted late in the process. ADOT outsources many activities and 

the contracts need to be explicit about the tribal consultation process. 


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Neither sufficient time nor moneys have been designated in the projects’ budgets 

to ensure input for 22 tribal governments. Therefore, the recommendation is being 

made to expand the current State and MPO consultation and cooperative requirements to include tribal consultation on all projects that are federally funded to ensure that States and MPO follow thru with the consultation requirements. 

III. Project Collaboration to Improve Tribal Transportation Safety 

Beginning in 2001, the Inter Tribal Council of Arizona, Inc. (ITCA) has persistently pursued resources from various agencies in Arizona to reduce MVC on tribal 

lands. Due to limited funding, all of the demonstration projects have been supplemented with ITCA and tribal moneys. The projects have been useful for all involved 

and have served to initiate tribal activities. 

However, tribal governments are in need of more than sporadically funded 

projects. They are in need of ongoing, sustainable programs. 

If tribal governments are to comprehensively address the significant loss of lives, 

they need resources to build capacity. This program approach requires multi-year 

funding and ongoing technical assistance. 

Hualapai Tribe Occupant Protection Goals 

A Hualapai Traffic Safety Committee was established to work with ITCA staff to 

analyze the crash data collected by the tribal police. The analysis helped the Committee to determine four emphasis areas to reduce MVC injuries and fatalities. A 

work plan was created to structure the goals, objectives and activities for occupant 

protection, priority one. 

No one tribal department administered a traffic safety program, so tribal, Federal 

and state in-kind services were combined to initiate the occupant protection goals. 

A FY 2007 grant was awarded by the BIAHSO to employ an officer to coordinate 

the occupant protection implementation tasks. 

White Mountain Apache Tribe (WMAT) and San Carlos Apache Tribe (SCAT) Seatbelt Focus Groups with Young Men 

The WMAT and SCAT staff collaborated with ITCA to convene four meetings with 

young American Indian men, ages of 15 to 25 years. The meeting discussions focused on the young men’s perceptions of seatbelt usage and non-usage. 

Since young American Indian men are most vulnerable to being injured or killed 

in MVC, the project concentrated on acquiring their advice to improve seatbelt 

usage. The project was funded by the ADHS and overseen by a multi-disciplinary 

advisory committee, including BIA and IHS. The outcome assisted the tribal government staff to develop two different seatbelt approaches to reach their community 

members. 

WMAT and SCAT Seatbelt Campaigns 

The WMAT and SCAT, with assistance from ITCA, each established diverse safety 

coalitions to create seatbelt promotional campaigns appropriate to their tribal membership. Members were recruited from police, fire, EMS, health, housing, transportation, Indian Health Service and the BIA Fort Apache Agency. Each coalition cooperated to design the logos, select appropriate promotional materials and to complete the following activities. 

Activities included combined seatbelt and sobriety checkpoints, seatbelt surveys, 

a community safety night, mock crashes at the high schools, distribution of child 

restraint systems, newspaper articles and advertisements, radio public service announcements, observational seatbelt studies, citation monitoring and the design and 

distribution of promotional materials. The roads program at the BIA Fort Apache 

Agency designed and installed ‘‘Buckle-Up’’ signage on the Fort Apache Reservation.


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Tohono O’odham Nation (TON) Road Safety Audit (RSA) 

The TON with ITCA’s assistance utilized the RSA methodology to identify hazardous roadway issues and to increase interaction with a MPO, Pima Association 

of Governments (PAG), to reconstruct a safer intersection. The TON RSA project 

was the first ADOT-sponsored RSA project to be conducted. 

The BIADOT Western Region, the BIA Papago Agency, and ADOT Tucson District, assumed responsibilities for the low-cost roadway improvements—pavement 

markings, signage, vegetation removal, slope reduction, and a cattle guard replacement. TON will be responsible for the enforcement of parking and speeding near 

the intersection and paying the utility charges for a new street light. To address 

sight distance, shoulders and turn lanes, the ADOT, BIA, PAG and the TON will 

work toward a $2 million reconstruction project.

Mr. Chairman, this concludes my testimony. I would be pleased to answer questions from the Committee.

The CHAIRMAN. Mr. Forrest, thank you very much. 

I think all four of you have described something similar to the 

Committee, and that is a determination to try to make a difference 

in improving roads and infrastructure, and yet a lack of resources. 

All of you have described the planning that you have gone through, 

the work you have been talking about this morning. We continue 

to get other information from the agencies to try to determine what 

they are doing. Right at the moment, for example, we are on the 

floor of the Senate debating a $640 billion—that is with a B—$640 


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billion defense authorization bill, with substantial increases in that 

piece of legislation. 

It certainly is a priority to fund the needs of our soldiers and to 

take on the terrorist fight and all of those issues. But it also remains a priority to take care of things here at home inside this 

Country. What we are discovering is substantial proposed cuts in 

many of the domestic spending accounts. We have to try to figure 

out on this Committee, both from an authorizing standpoint and 

also recommendations to appropriators, how we come up with different approaches and additional funding to try to address the 

needs. 

So I don’t have a lot of questions for you. All of you have submitted substantial statements. I think your contribution today is 

very important. 

Mr. Kashevaroff, you described a circumstance south of Anchorage with a substantial bay. Of course, every time we talk about 

something here in the Congress, somehow Alaska is different because it is so unbelievably big. 

Senator MURKOWSKI. It is different. 

[Laughter.] 

The CHAIRMAN. It is different, yes. It is very different. Lack of 

roads, you describe a bay. How large is the bay that you have to 

cross in order to get to, would you call it getting to the mainland? 

Tell me the circumstances. 

Mr. KASHEVAROFF. It is 13 miles across the bay to get to a paved 

road that will take you to Anchorage in 4 hours. So to make it from 

Seldovia to Anchorage, you have to hop on a plane or take a boat, 

and then drive four more hours. 

The CHAIRMAN. And you can’t circumnavigate the bay? It is too 

large for that? 

Mr. KASHEVAROFF. Yes. My wife wants a road that takes 60 or 

70 miles over mountains to get to the road. So a ferry is what we 

really need. 

The CHAIRMAN. Every part of our Country has different, unusual, 

unique needs. Alaska in virtually every subject we cover on this 

Committee, whether it is dentists or roads, they have unique and 

different needs because it is such an unusual State in its geography. 

In North Dakota, Mr. Red Tomahawk, your reservation spans 

two States, North and South Dakota. How many acres exist on 

your reservation or square miles, whichever you prefer? 

Mr. RED TOMAHAWK. It covers 2.3 million acres. 

The CHAIRMAN. And how many miles of roads? 

Mr. RED TOMAHAWK. We have over 200 miles of BIA System and 

Tribally-owned roads and hundreds of miles of state and county 

routes. 

The CHAIRMAN. I have driven a lot of your roads, Mr. Red Tomahawk. I can confirm your concern about the lack of funding, but I 

also know that the Standing Rock Sioux Tribe has aggressive efforts to try to address them. I appreciate your efforts. 

Mr. Garrigan, how many miles of roads exist on your reservation? 

Mr. GARRIGAN. Approximately 550 miles, and of that there are 

only about 54 miles of other roads like State. There are no county 

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roads on the Red Lake Reservation. There are two State roads that 

traverse the reservation. 

The CHAIRMAN. Mr. Forrest, what is the size of your reservation 

in square miles or acres? 

Mr. FORREST. The reservation is right at one million acres. It 

fronts along the Colorado River about 108 miles, so a lot of it is 

just really steep cliff areas. It is a really very beautiful reservation, 

but a lot of it is very inaccessible. 

The CHAIRMAN. Senator Murkowski? 

Senator MURKOWSKI. Thank you, Mr. Chairman. 

And thank you all for your testimony. It has been very important 

to listen to the facts on the ground, the realities of what you deal 

with. While the discussion has been about the lack of money and 

the need for more, certainly toward maintenance, just for general 

safety and upkeep of the roads, I think Mr. Kashevaroff, you pointed out a real glaring problem that we have with the system, that 

even when there might be the money there, even when the money 

is promised, that there are still delays that confound the ability to 

move forward with a project. 

As you described, you are 2 years behind in getting anything 

moving in providing access for the people of the Seldovia Tribe. 

In my mind, that is something that we ought to be able to deal 

with. If it is a bureaucratic snarl, if there is a problem with getting 

the money from A to B, we need to be able to figure out how we 

make that happen in a more efficient manner. 

So it is particularly frustrating for me after our experience with 

the Petersburg Tribe to now see Seldovia in the similar situation. 

So it is not always about the need to plus-up the budget. It is making sure that the dollars that are available actually get on the 

ground to make the roads, to make these connections happen. 

I am not going to doubt your testimony, but I have never been 

able to make that trip from Homer to Anchorage in 4 hours. You 

must be a faster driver than I am, but we won’t put you on the 

hot seat for that. 

[Laughter.] 

Senator MURKOWSKI. Let me ask you just very quickly whether 

or not, Mr. Kashevaroff, you believe that the new IRR funding formula that was published back in 2004, do you think that it equitably funds the Alaska tribes? Do you think it is fair? 

Mr. KASHEVAROFF. I think that there could be improvements. It 

really comes down to, as you said, to how it interacts with BIA. 

When we put roads on our system and then have BIA tell us, no, 

you can’t do that; or a lot of the roads that the villages in Alaska 

do have might be owned or maintained by the State. Those are the 

access points we have, and we need to be able to put those roads 

on the system. Up until at least this year, the State and the BIA 

have not come to terms on an agreement to add those roads to our 

system. 

So when you hear that the State of Alaska roads increased by 

1,800 percent, which is a huge increase in the last decade, but a 

decade ago very few villages in Alaska were putting anything on 

the system. We weren’t really accessing IRR. Only recently we decided that we realized that we could be accessing IRR, so we started trying to get our inventory on. 

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Senator MURKOWSKI. Well, it was in 2003. It was June 4. We had 

Loretta Bullard here before the Committee testifying on this same 

issue. She told the Committee that a complete inventory of the 

roads had never been compiled; that the BIA had never surveyed 

our villages to identify the roads that were eligible for support. 

That was just in 2003. 

So yes, we should be seeing a big step up in terms of the number, 

because up until 2003, we had not even been registered as far as 

that goes. 

Let me ask just one more question of you. We have this high priority project program that allows for more competitive grants, a 

process for competitive grants, to help out the funding for the 

smaller tribes. Is this something that Seldovia has taken advantage of? Are you familiar with this particular program? 

Mr. KASHEVAROFF. I don’t think we have taken advantage of it 

yet. Through the ferry project, we have been leveraging funds from 

Congress and Federal Highways, from BIA, from the State of Alaska. We have been trying to through our self-governance leverage a 

lot of different funds. So any type of programs like the one you just 

mentioned are of interest to us. 

What we found is, though, that the various pots of money have 

so many different rules and so many different ideas, even though 

Congress has said, you know, Federal Highways, you shall treat 

IRR like ISDEAA or self-governance, we can’t actually get them to 

say, yes, we will recognize it as self- governance funds. 

Even the BIA, they will recognize it as self-governance, but they 

won’t deal with us in a government-to-government trustful manner 

that we could expect. When you negotiate things, you have to have 

reasonable people on the other side of the table that want to 

achieve something similar to yourself. I think the culture that we 

are faced with is a culture of not seeing Indians achieve things, but 

it is maybe a 1907 culture of, you know, the BIA is going to run 

the shop for you; we don’t care if you want self-governance or not. 

As a matter of fact, I have a letter I need to deliver to Senator 

Dorgan, Chairman Dorgan and you, from the Cheesh-Na Tribe in 

Alaska who in 2003 had a signed agreement with the BIA for their 

money, and they haven’t gotten it until just recently. They were 

supposed to get almost $1 million, and they have already started 

the project, and BIA gave them $35,000 and said, oh, this is all you 

are supposed to get, even though we had told you we were going 

to give you almost one million dollars. 

I mean, 4 years later they come and cut the budget by a huge 

percent. That is crazy. They just have this mentality there in the 

BIA, at least in Alaska, that we are not going to have roads; we 

are not supposed to be in business. 

And so when we are not on the road system, when we are not 

on the inventory, it is because we have this roadblock. We really 

need Congress to sit down and tell BIA to get with the program 

to help the tribes out, instead of trying to hinder the tribes all the 

time. 

Senator MURKOWSKI. Hopefully, some of the testimony that we 

have had this morning will allow for further discussion with the 

BIA as to how we move forward and make sure that the funds that 

are available get on the ground to the tribes to make the difference, 

83

* The information referred to has been printed in the Appendix. 

and that we can continue to work to provide for the needs within 

Indian Country when it comes to transportation and to provide for 

the health and safety of those that are traveling on the roads. 

I couldn’t agree with the Chairman more when he says it 

shouldn’t make a difference when you cross over that boundary 

into a reservation, into Indian Country, that you shouldn’t be able 

to see the change in the conditions. It ought to be seamless. It is 

not. We have a lot of work on. 

I appreciate the Chairman’s attention. 

The CHAIRMAN. Senator Murkowski, thank you very much. 

Once again, let me thank all of you for traveling some distance 

to be with us. We will benefit greatly from your testimony. It will 

be one of those issues that we will continue to work on very aggressively here. 

Yes, Mr. Red Tomahawk? Do you wish to make one additional 

comment? 

Mr. RED TOMAHAWK. Yes, Mr. Chairman. I want to share with 

you, I have a letter from the Oglala, Sioux Tribe to you, that I 

wanted to share for the record, on your issue regarding the comprehensive roads inventory. * 

The CHAIRMAN. Without objection. 

We will keep the record open for 2 weeks. Any additional testimony that will be submitted, and we would invite submissions from 

across the Country and from Indian tribal leaders, will be included 

as part of the permanent record. 

This hearing is adjourned. 

[Whereupon, at 11:15 a.m., the Committee was adjourned, to reconvene at the call of the Chair.] 

(85)

1 Angel Riggs, ‘‘State traffic deaths top U.S. average,’’ Tulsa World, April 13, 2006, sec. A, p. 

1. 

APPENDIX

PREPARED STATEMENT OF CHADWICK SMITH, PRINCIPAL CHIEF, CHEROKEE NATION

Thank you Mr. Chairman, Ranking Member, and Members of the Committee. I 

am Chad Smith, Principal Chief of the Cherokee Nation. I appreciate this opportunity to provide you with testimony. I would also like to offer my condolences to 

the Committee for the passing of Senator Craig Thomas, who committed his time 

and effort to Indian issues throughout his tenure in the U.S. Senate. 

The Cherokee Nation has 270,000 citizens living in almost every state of the 

Union. Approximately 100,000 Cherokee citizens reside in the 14 county jurisdiction 

of northeastern Oklahoma. Of these 14 counties, 13 are predominantly rural communities hampered by limited access to vital services and unpaved or inadequate 

roads. The Cherokee Nation’s Roads Department is charged with handling over 

1,500 miles of roadway. Because of the disparity between needs and funding, the 

Council of the Cherokee Nation has appropriated an extra $2 million per year to 

assist with unmet needs. The Cherokee Nation works with Federal, state, and other 

tribal entities to collaborate on construction, which is an effective and efficient use 

of resources. The Nation dedicates a significant amount of its own tax revenues toward joint tribal-state projects, and cooperates with the state on project planning, 

survey, and execution. 

The support of this Committee during the highway reauthorization process was 

pivotal. You raised the level of awareness of needs in Indian Country, which ultimately helped to increase the level of funding for the Indian Reservation Roads 

(IRR) program in the ‘‘Safe, Accountable, Flexible, Efficient, Transportation Equity 

Act—A Legacy of Users’’ (SAFETEA–LU). However, even within Indian Country, little is known about the unique IRR needs of the Cherokee Nation and other tribes 

in Oklahoma. Therefore I believe it imperative that the Committee have a full understanding of why the IRR program is critical to our future success as tribal nations. 

For many tribal members in Oklahoma, a safe and decent transportation system 

is not a luxury we enjoy. Too frequently I hear of needless and deadly accidents because of unsafe roads. Too often I speak to citizens who cannot retain a job because 

their vehicles are inoperable. In April 2006, the Tulsa World reported that traffic 

accidents are the leading cause of death among Oklahoma residents under 25 years 

old. In fact, 38 of the 100 most dangerous roads lie in northeastern Oklahoma within the Cherokee Nation. The highest concentration of fatal and serious-injury crashes in the state was in Cherokee, Ottawa, and Rogers counties—on our lands. 1 Poor 

visibility, sharp curves, and narrow shoulders are all common within the Cherokee 

Nation, and are all fixable conditions. They can be remedied by safety features such 

as reflective markers, guard rails, and rumble strips. Increased law enforcement 

and emergency medical services can decrease unnecessary fatalities. The unique status of Indian land in Oklahoma has prevented the BIA thus far from adequately 

addressing these issues and adding necessary safety measures. 

One of our major concerns has been the reluctance of the BIA to define Cherokee 

Nation roads as roadways covered by IRR funding. The BIA has previously argued 

that the Cherokee Nation must own all its lands to receive its funding. As this Committee saw during the Law Enforcement Hearing, Indian country is a checkerboard 

of restricted, trust, and non-tribal land—an arrangement that has caused jurisdictional confusion in the past. However, the close proximity between different categories of land should not preclude IRR funding. The definition of an Indian Reservation Road is one that provides access to all Indians and Indian lands, not just 

reservations. The Cherokee Nation’s transportation system in Oklahoma clearly 

falls within this definition, and therefore merits IRR funding under SAFETEA–LU. 

Proper interpretation of the IRR program’s application would allow the Nation to 

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more adequately address the road conditions I described earlier. The current interpretation harms our citizens and other Oklahomans, and also hinders our ability to 

prosper economically in rural areas. 

Another concern is the division between two types of Federal funding: construction funding and maintenance funding. The BIA allocates funds for roadway construction, but not for maintenance. This failure to properly fund road maintenance 

has prevented the Cherokee Nation from preserving its roads over time. This requires more frequent reconstruction of roads, which is not an efficient use of Federal 

resources. 

We believe that with the help of Congress, the Cherokee Nation will have the 

power to implement key safety features that will reduce the cause of death. Today, 

we are experiencing greater volumes of traffic on our roadways than ever before. 

Commercial expansion has helped us to become more self-sufficient while also producing a greater strain on existing transportation routes. With the attention of the 

IRR program and the addition of maintenance funding, the goals of SAFETEA–LU 

will be realized on our roadways.

Thank you for this opportunity to present written testimony on behalf of the 

Cherokee Nation. 

CHEESH-NA TRIBAL COUNCIL

Chistochina, AK, July 12, 2007

Hon. BYRON L. DORGAN,

Chairman, 

Senate Committee on Indian Affairs, 

Washington, DC.

Dear Honorable Dorgan:

In light of the Senate Committee on Indian Affairs hearing on transportation 

issues, I write this letter to request your assistance in addressing egregious problems with the Bureau of Indian Affairs’ (BIA) administration of the Indian Reservation Roads (IRR) Program funds of the Cheesh-na Tribal Council. 

Cheesh-na Tribal Council has planned, designed and begun construction on a significant road impovement project serving our community, which we implemented 

pursuant to our Self-Governance agreements with the Secretary of Interior under 

the Indian Self-Determination and Education Assistance Act (ISDEAA). In order to 

make this project feasible, Cheesh-na has sought and received Federal support in 

addition to the annual allocation of IRR Program funds. For instance, we received 

support from the Army Corps of Engineers and competed for and received a grant 

from the IRR High Priority Project fund. Yet, a key funding component for our 

project is still missing: approximately $815,000 in IRR Program funding obligated 

for the project from the BIA in FY 2003. 

This funding has been the subject of numerous conversations and assurances from 

BIA that these funds would be distributed to Cheesh-na in our FY 2007 IRR Program Addendum (see, e.g., the attached March 19 letter to LeRoy Gishi and Peggy 

Exendine). Indeed, this $815,000 in FY 2003 funds is expressly identified as an 

amount due to Cheesh-na in our FY 2007 IRR Program Addendum (please see attached IRR Program Addendum to Cheesh-na’s FY 2007 Funding Agreement, page 

2, footnote 2, which identifies the cost codes and total amounts due under that 

Agreement). 

Based on these assurances from BIA and the terms of FY 2007 agreement with 

the Secretary, Cheesh-na has engaged contractors to complete construction of the 

road project this summer. We have received our first bill in the amount of $700,000. 

Meanwhile, when BIA transferred funding to Cheesh-na this week purportedly pursuant to our FY 2007 IRR Program Addendum, the amount we received was only 

$35,632.06. We have sought clarification from the BIA Division of Transportation 

Chief LeRoy Gishi, but have not received a response. 

Cheesh-na must receive the full amount of IRR Program funding set forth in our 

agreement immediately in order for this critical project to proceed. Given the extreme urgency of the situation, Don Kashevaroff has agreed to raise our concerns 

in his testimony before the Committee. We urge your assistance in overseeing BIA’s 

proper administration of its agreement with the Cheesh-na Tribal Council. 

Sincerely, 

ELAINE SINYON, 

Tribal Administrator.

cc: Senator Lisa Murkowski; Cheesh-na Tribal Council.

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Attachments 

HOBBS, STRAUS, DEAN & WALKER, LLP 

Washington DC, March 19, 2007

Mr. LEROY GISHI,

Chief, Division of Transportation, 

Bureau of Indian Affairs, 

Washington, DC.

Ms. PEGGY EXENDINE,

Transportation Director, 

Juneau Area Office, 

Bureau of Indian Affairs, 

Juneau, AK. 

RE: CHEESH-NA TRIBAL COUNCIL FY 2003 POO FUNDS

Dear Mr. Gishi and Ms. Exendine:

This letter is to confirm our telephone conversations regarding the distribution of 

road construction funding obligated to the Cheesh-na Tribal Council (Christochina) 

(‘‘Cheesh-na’’) in FY 2003 will be distributed in the coming weeks. Based on those 

conversations, we understand that roads construction funds in the amount of 

$814,257 (from FY 2003 Point of Obligation (POO) funds listed below) will be provided to Cheesh-na when the Bureau of Indian Affairs (BIA) distributes remaining 

balances of prior year Indian Reservation Roads (IRR) Program funds (the ‘‘August 

distribution’’ funds). We understand that the BIA is currently reconciling accounts 

and that in the coming days or weeks, BIA Central Office will distribute those funds 

to the BIA Regions, which will then re-allocate those funds to the tribes. 

Each of you confirmed in our conversations that the BIA has established mechanisms and processes so that the amount of funds due to Cheesh-na from 2003, will 

be included as part of the funding distributed to Cheesh-na in FY 2007. We further 

understand that these funds will be made available to Cheesh-na under its IRR Addendum to its self-governance agreement through the Office of Self-Governance. The 

amount of FY 2003 funds that will be made available to Cheesh-na in FY 2007 is 

$814,257. This amount represents the total of two FY 2003 obligations to Cheeshna for its roads construction project that were previously identified as follows:

2003 POO Funds: $296,675.00 (E00450/2003/F3109/E0210700/252i)

2003 POO Funds: $517,582.00 (E00450/2003/F3110/E0210700/252i)

Total: $814,257.00

This funding is absolutely necessary for Cheesh-na to carry out its planned road 

construction project this year. Cheesh-na looks forward to receiving these funds as 

soon as possible. Thank you for your assistance. 

Sincerely, 

HOBBS, STRAUS, DEAN & WALKER, LLP 

By: F. Michael Willis

cc: Ken Reinfeld, OSG

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OGLALA SIOUX TRIBE—OFFICE OF THE PRESIDENT

Pine Ridge, SD, July 10, 2007

Hon. BYRON L. DORGAN, Chairman, 

Senate Committee on Indian Affairs, 

Washington, DC. 

RE: INDIAN RESERVATION ROADS (IRR) FUNDING BEING USED FOR STATE AND

COUNTY ROAD CONSTRUCTION PROJECTS

Honorable Senator Dorgan:

The Oglala Sioux Tribe is writing this letter to inform you of a funding situation 

that ultimately reduces the amount of annual appropriations our Tribe and that the 

majority of other large lands based Tribes receive from the Indian Reservation 

Roads Program for construction. A very large share of these dollars is going to construct roads under the jurisdiction of State and County governments. 

There was a Final Rule published in the Federal Register on July 19, 2004 for 

the Indian Reservation Roads (IRR) Program. Inside that rule 25 CFR Part 170.226 

establishes the need for Tribes to expand their inventories for funding purposes.

CFR 25 Part 170.442 specifies that Tribes, Reservations, BIA, Agency, Region, Congressional District, State and County roads can be placed on each Tribes inventory. 

Prior to Public Law 109–59 Safe, Accountable Flexible, Efficient, Transportation equity Act—A Legacy for Users (SAFETEA–LU) and 25 CFR, Part 170 there was an 

annual 2 percent cap on the amount of added inventory items each Tribe could 

claim. This cap no longer exists and Tribes are allowed to place any number of roads 

including ‘‘proposed roads that don’t even exist yet’’ on their inventories. Since 25 

CFR Part 170.442 plays a key role in allowing Tribes to include any amount of State 

and County roads on their IRR inventory, it has proven disastrous for the Oglala 

Sioux Tribe and for many other large land base Tribes throughout the country including the Navajo Nation. In the Great Plains Region alone, we lost approximately 

$4 million and are anticipating losing similar amounts for FY07. This is devastating 

for our region in terms of funding for road construction projects. 

During Transportation Equity Act of the Twenty First Century (TEA–21) Tribes 

divided an annual fund nationally budgeted at $275 million using a Relative Need 

Distribution Formula (RNDF). The Oglala’s share of IRR Program funds was at 

$5,036,000.00. With the passage of SAFETEA–LU and 25 CFR Part 170 all Tribes 

should have seen an increase of funds due to the annual step increase in appropriations from $275 million in FY04 to $450 million by FY09. This is not the case due 

to the specific language in 25 CFR Part 170.442 allowing each Tribe to add State 

and Country roads and in effect drastically modify their Relative Need. Our Tribe 

has lost nearly $2 million last year and is facing another loss of approximately the 


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same amount for this year. We were funded at around $3.1 million for FY06. We 

are looking at even less numbers for FY07. For those 2 years the Oglala Sioux Tribe 

is losing in the neighborhood of $4 million for road construction. We already have 

more than a $66 million backlog for road construction under TEA–21 and since we 

are forced to add State and County roads under SAFETEA–LU to our system as 

well, we are now facing a $360 million construction backlog. A very large majority 

of Tribes all across America are experiencing the same problem. This can be directly 

related to an unfair advantage that some Tribes have taken to update their inventory. I do not wish to target a specific Tribe or State however data has shown that 

the Eastern Oklahoma Tribe has been reaping huge and unfair benefits in terms 

of funding from the changes in the most recent Transportation Bill. They have far 

exceeded their Relative Need by many times. Eastern Oklahoma Tribes are undoubtedly financing County and State road construction projects with a windfall of Indian 

Reservation Roads construction funds. These State and County road systems are normally and traditionally being fully funded through another source. Yet, the language 

in SAFETEA–LU and 25 CFR Part 170 allows State and County road systems to 

be supplemented with Indian Reservation Roads dollars. The land base and need 

within Oklahoma prior to CFR 25 Part 170 and SAFETEA–LU is extremely small 

compared to the Oglala Sioux or Standing Rock Sioux or Rosebud Sioux or Cheyenne River Sioux or the Navajo Nation. To my knowledge, the Oklahoma Tribes do 

not have any Indian Reservation Roads listed on their inventory. In other words, 

they have ‘‘zero’’ miles of IRR roads. But due to the changes in the Transportation 

law, it has been said that they are receiving in the neighborhood of $8 million to 

construct State and County roads. Nothing goes to IRR roads because they do not 

have any IRR roads. If you review the attachment I have provided, I have highlighted language in PL 109–59, ‘‘including communities in former Indian reservations in Oklahoma’’ and further, ‘‘which the majority of residents are American Indians.’’ With that particular language, how does the entire State become involved? Because we are only talking about ‘‘where the majority of residents are American Indian.’’ the entire State is obviously not made up of a large community consisting 

of only American Indians! For example, are they suggesting that the entire city of 

Tulsa is made up of an Indian community? That is very unlikely. 

The Great Sioux Nation still recognizes the 1868 Treaty with the United States 

where in Article 2 it basically states that everything west of the east bank of the 

Missouri River in South Dakota has been set apart for the absolute and undisturbed 

use and occupation of Sioux Tribes. If any Tribes in the Great Sioux Nation laid 

claim to the FY 2006 road system within the 1868 territory as defined in Article 

2 of that Treaty, they would be potentially increasing their inventories by incredible 

amounts. The State of South Dakota was established in 1889. This was 21 years 

after the signing of the 1868 Treaty with the Great Sioux Nation. Which brings up 

the question of how was South Dakota and its Counties established within an Indian Territory? Since State governments do not have jurisdiction on Indian Reservations why are County governments allowed to exercise authority on Indian Reservations? This leads to the questions of why do Tribes have to get certifications from 

State and County governments in Indian Territory? If Oklahoma Tribes are claiming the entire State of Oklahoma as Indian Territory, then why can’t the Great 

Sioux Nation claim all of South Dakota and increase their road inventories accordingly? This is an issue that the Tribal Chairmen’s Association in the Great Plains 

Region should address. Additionally, we are in the middle of adding all the Mni 

Wiconi pipe line access roads to the IRR system. As you know this is the largest 

pipe line in the world and the Oglala’s own it. At my direction, my Transportation 

staff is taking the inventory all the way to Ft. Pierre, SD. Roads leading to drinking 

water sources are eligible to be included in the IRR invt(ntory. 

On the subject of how to calculate the Cost to Construct (CTC) and Vehicle Miles 

Traveled (VMT), in 25 CFR Part 170, Appendix C to Subpart C(10)(see the entire 

citation below), contains guidance on how to claim 100 percent CTC and VMT on 

added inventories.

• 10. Do all IRR Transportation Facilities in the IRR Inventory Count at 100 Percent of their CTC and VMT? No. The CTC and VMT must be computed at the 

non-Federal share requirement for matching funds for any transportation facility that is added to the IRR inventory and is eligible or funding for construction 

or reconstruction with Federal funds, other than Federal Lands Highway program funds.

• However, if a facility falls into one or more of the following categories, then the 

CTC and VMT factors must be computed at 100 percent:

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• (1) The transportation facility was approved, included, and funded at 100 percent of CTC and VMT in the IRR Inventory for funding purposes prior to the 

issuance of these regulations.

• (2) The facility is not eligible for funding for construction or reconstruction with 

Federal funds, other than Federal Lands Highway programs funds; or

• (3) The facility is eligible for funding for construction or reconstruction with 

Federal funds, however, the public authority responsible for maintenance of the 

facility provides certification of maintenance responsibility and its inability to 

provide funding for the project.

Initially, there was confusion in the legal interpretation of this language and most 

BIA regions were requiring Memorandums of Understanding (MOU’s) between 

Tribes, States and Counties to increase the inventory. The Oglala Sioux was one of 

the Tribes who interpreted the citation to mean that the Tribes needed certification 

letters from States and County’s rather that MOU’s. Tribes eventually received clarification to that question through a policy on minimum attachments letter dated 

June 15, 2006 and authored by Mr. Ragsdale who is the Director of the Bureau of 

Indian Affairs. That letter recognized that Tribes had an option to enter into MOU’s 

with States and Counties for an ‘‘Acknowledgement of Public Authority’’ but it was 

not required. The letter also clarified the language in 25 CFR Part 170, Appendix 

C to Subpart C, that Tribes must get a certification letter from States and Counties 

acknowledging that the ‘‘public authority responsible for maintenance of the facility 

provides certification of maintenance responsibility and its inability to provide funding for the project.’’ The first part of the quotation is optional and the second part 

(italicized) is required. Combined with 25 CFR, Part 170.442, this is where the root 

of the problem lies. Mr. Ragsdale’s interpretation is correct but the citation is devastating to most Tribes. At the risk of sounding repetitious, due to this language 

some Tribes are unfairly taking advantage of adding State and County roads of 

their systems causing an unfair increase in funding for those Tribes and a total disruption of the Relative Need. Another question that needs to be answered is why 

should a Tribe have to get this certification when State law requires counties to 

maintain their road system? We have an issue with Jackson County who refuses 

to sign certification letters. This is causing the Oglala’s to lose funding because we 

cannot get this document (as required in the above citation) placed in a package for 

submittal and ultimate approval by BIADOT. Since all county roads are on the 

States inventory, we are going to ask the State of South Dakota to provide the certification letter for the counties and possibly get around this issue. 

The Oglala Sioux Tribe is also questioning BIADOT’s interpretation of counting 

added road inventories at 20 percent vs. 100 percent when State and County governments do not sign certifications. In 25 CFR Part 170.444(f) BIA Regional Office 

certifies the data that was submitted by the Tribes then forwards it to BIADOT. 

BIADOT then approves those submissions before they are included in the National 

IRR Inventory. Once again and in the Oglala Sioux Tribes case, Jackson County did 

not sign certifications. We submitted data with the Counties road miles anyway 

with a letter explaining that the County refused to cooperate. The BIA Regional office accepted the data and letter then forwarded it to BIADOT. BIADOT returned 

the data to the Regional Office as unacceptable because of the lack of a County Certification letter. Because BIA Regional Office accepted the data and letter from the 

Oglala Sioux Tribe explaining the situation our Tribe should have been able to 

count the added County miles as 100 percent CTC or at the very least at 20 percent 

because of the language in Appendix C to Subpart C, which I will briefly cite that 

CTC and VMT can be counted at the non-Federal share requirement for matching 

funds for any transportation project that is added to the IRR inventory and is eligible or funding for construction or reconstruction with Federal funds, other than Federal Lands Highway program funds. The issue to acceptance of the updated inventory is between BIA Regional Office and BIADOT as the Tribes data has already 

been accepted by BIA. BIADOT simply will not enter the needed data for the Oglala 

Sioux Tribe into the National IRR inventory because the County did not submit a 

certification letter. This has the direct affect of causing the Oglala’s to lose more 

funding for road construction. 

BIA representatives are anticipating the fluctuations in funding to level out in a 

few years as other tribes update their inventories but some Tribes cannot get their 

respective counties to sign certifications. Those Tribes who cannot update their inventories by adding county roads because they are lacking cooperation with certain 

County governments will remain under funded. As mentioned before, even if certifications were signed, the new inventories have a potential of being so lopsided that 

some Tribes will never be able to recover what they had prior to SAFETEA–LU. The 

counties who do not sign certifications are actually holding Tribes IRR funding hosVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00100 Fmt 6601 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
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tage and allowing funding, which was more fairly distributed prior to the enactment 

of 25 CFR Part 170, to be redistributed elsewhere. Then the opposite exists for those 

States and Counties who have already signed certifications, large amounts of IRR 

road construction funds are going to be used to construct State and County roads. 

Because of the language in CFR 25 Part 170, and even though all Tribes update 

their inventories to their maximum potential, most Tribes can only sit by and watch 

as their funding continues to dwindle while within the Midwest Region and the entire State of Oklahoma takes advantage of a fund that should rightfully belong to 

all the Indian Tribes rather than State and Counties governments. 

25 CFR Part 170.155 established the Indian Reservation Roads Program Coordinating Committee. The committee consists of 12 primary members from Indian 

Tribes (one from each region), 12 alternate members from Indian Tribes and 2 nonvoting Federal representatives, one being from FHWA and the other from BIA. They 

are basically charged with providing input and making recommendations on most 

of the items within the Final Rule (25 CFR Part 170). A few and I would like to 

re-iterate the word ‘‘few,’’ of those members are very crafty and are utilizing the 25 

CFR Part 170 to gain a very distinct advantage over other Tribes in terms of increasing the road inventory to gain additional funds for their respective State and 

County road systems. At this point they can rightfully do so because it is allowed 

in the law. All members on the Coordinating Committee can literally be considered 

experts in the field of Indian Reservation Roads and Transportation facilities. Which 

leads to the age old saying, ‘‘If you put a fox in the henhouse to watch the hens, 

who is watching the fox?’’

25 CFR Part 170.4 poses the question of ‘‘What is the effect of this part on existing Tribal rights?’’ In (c) of that section the answer is; ‘‘This part does not terminate 

or reduce the trust responsibility of the United States to Tribes or individual Indians.’’ The Oglala Sioux Tribe is recommending and requesting a congressional investigation into the funding of State and County road systems using Indian Reservation Roads dollars. We desire to expose the very wide and very negative impact this 

issue has taken against the majority of large land based Indian Tribes all across 

the Nation. We believe that this law, although it has corrected much of the underfunding of roads for Tribes, also insidiously diminishes the sovereignty of Tribes by 

mandating them to create agreements with States/State entities in order to receive 

funding which is a trust responsibility of the Federal agencies. Our recommendation 

is to remove the language in 25 CFR Part 170 allowing Tribes to include State and 

County roads in their inventories and to immediately remove any and all State and 

County road systems that have been placed on the BIA Indian Reservation Road 

Inventory under that rule. 

If you have any further questions on this subject, please contact my office. 

Sincerely, 

JOHN YELLOW BIRD-STEELE, 

President, Oglala Sioux Tribe.

cc: Pete Red Tomahawk, Chairman, IRRPCC 

PREPARED STATEMENT OF THE GILA RIVER INDIAN COMMUNITY

The Gila River Indian Community (the ‘‘Community’’) desires to present this 

statement for the record in the hearing on tribal transportation issues in Indian 

Country. As an integral part of creating, improving and planning transportation 

routes within reservation lands, rights-of-way are a significant factor in any discussion of transportation issues. The Community presents issues of rights-of-way within the Gila River Indian Reservation (‘‘Reservation’’) that it has encountered. 

I. Introduction 

The Reservation was established by an Act of Congress in 1859. From 1876 to 

1915, seven Executive Orders of the President increased the size of the Reservation 

to its current size of 372,022 acres. The Reservation is homeland to the Akimel 

O’odham (Pima) and the Pee-Posh (Maricopa) Tribes. The Reservation is located in 

south central Arizona, and is the largest reservation in the Phoenix metropolitan 

area. The Reservation land base is split into seven districts that span over two counties, Maricopa and Pinal. Ninety-four thousand acres of the Reservation is allotted 

land. 

In 1939, the Community was formally established by adoption of its own Constitution. Currently, the Community has over 19,000 enrolled members with approximately 12,000 residing within the Reservation. 

Due to the location of the Reservation, the Community is a pivotal player that 

the State of Arizona and local governrnents must work with as transportation 

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1Morrison Institute for Public Policy, The Future at Pinal: Making Choices, Making Places

9 (2007), http://www .asu.edu/copp/morrison/PinalReport.pdf. 2 Id.

3 Rights-of-Way Through Indian Lands, 25 U.S.C. § § 311–328 et seq. 4See Rights-of-Way Over Indian Lands, 25 C.F.R. § 256 (1938). 

routes are planned. The Community is surrounded by the rapidly growing cities of 

Maricopa, Casa Grande, Chandler, and Coolidge. See attached Map. As of July 2006, 

Pinal County had nearly 300,000 residents, amounting to a 67 percent increase over 

6 years. 1

Pinal County’s growth is not expected to slow anytime soon. The population is 

projected to reach one million residents in the next twenty years. 2 Inevitably, residents of the surrounding communities must travel through the Reservation, posing 

a serious and growing problem for the Community. The Community Council is consistently asked to respond to overtures from the State of Arizona and local governments inquiring about the Community’s willingness to improve, expand, and build 

new roads through the Reservation. 

Key issues that continually surface include (1) whether a right-of-way was established for existing paved and unpaved roads; (2) the ability of the Community to 

work with the United States and allottees to obtain rights-of-way over allotted land; 

(3) budgeting for the time and additional resources needed to address highly 

fractionated allotments; (4) obtaining accurate valuations of rights-of-way over Reservation lands; and (5) creating a comprehensive Reservation-wide land use plan 

that will meet the needs of the Community while addressing external influences. 

The Community is in a position to actively participate in a State-wide transportation planning, however the Community’s position is often jeopardized by these important issues. 

II. The Role of the United States 

The Secretary of the Interior (‘‘Secretary’’) must approve all rights-of-way through 

Indian Country. 3 To date, the Community is aware of seventy-three rights-of-way 

through the Reservation. However, that does not equate to the number of paved and 

unpaved thoroughfares crossing the Reservation. Rights-of-way established prior to 

1948 only required the allottee’s consent and the Secretary’s signature to secure a 

right-of-way over allotted land. The Secretary could independently grant rights-ofways over tribal lands without the Community’s consent. 4

Prior to 1997, the Bureau of Indian Affairs (BIA) held the responsibility for all 

road inventory, maintenance and construction for the Community. In 1997, the 

Community’s Department of Transportation (‘‘GRICDOT’’) was formally established. 

In 2000, under a P.L. 93–638 contract, the Community assumed management and 

operation of all BIA road maintenance programs on the Reservation. The divisions 

of GRICDOT are: (1) Planning and Rights of Way, (2) Road Construction and Surveying, (3) Road Maintenance, and (4) Fleet Management. 

GRICDOT has assumed the responsibility of establishing rights-of-way as needed. 

This includes obtaining consent from the Community as well as any allottees owning parcels of land the right-of-way will pass through; however, there are various 

problems with this process. One major complication is finding and contacting each 

allottee owning land in the planned-project area in order to obtain the requisite consent for a right-of-way. Incomplete wills add to allotment fractionalization, which 

further enhances the difficulty of getting numerous allottees to agree to a right-ofway and then to agree to waive compensation. In addition, the BIA does not have 

an efficient system for tracking allottees; therefore, GRICDOT must expend countless resources to get the job done. This complicated process delays road projects and 

increases costs over time due to inflation. Moreover, because BIA funding for rightof-way acquisition is non-existent, these moneys come out of right-of-way construction funds. Finally, valid documentation of an established right-of-way is often difficult to find due to BIA’s flawed recordkeeping over the years. Although the Community is administering existing roads within the Reservation, GRICDOT is limited 

in its ability to engineer and plan transportation systems that are currently proposed to address a growing external population and its impact on the Community. 

III. Rights of Way 

In 2005, evidence surfaced of a previously unknown 1933 right-of-way signed by 

the First Assistant Secretary to Pinal County. In 1933, the Pinal County Board of 

Supervisors desired to construct Signal Peak Road on the Reservation as a means 

for farmers to access a major thoroughfare. The right-of-way straddles land within 

Pinal County and the Reservation boundary and consists of allotted and Community 

land. The damages to allottee land were deemed nominal; however the United 

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States waived damages across Community land. In present day, the right-of-way 

will no longer be used by farmers but by residents of a soon to be built 11,000 home 

subdivision adjacent to the Reservation. A paved and improved thoroughfare would 

grant access to an already congested thoroughfare running through the Reservation. 

Rights-of-way granted prior to 1948 without Community involvement often negatively impact the Community in the present day. First, the BIA lacks detailed 

records of existing rights-of-way to provide the Community with notice. Second, the 

Community desires a structured process for determining the status of all rights-ofway; a process that will allow for consultation between the Community and the 

United States, and in turn will streamline the notice and consent process with 

allottees when creating, improving, or expanding any right-of-way. Third, the Community has a strong desire to regulate and participate in activities that affect the 

Community’s land base regardless whether of it is Community or allotted lands and 

suggests Federal resources to assist in notification and planning a Reservation-wide 

transportation system. 

IV. Recommendations 

The Community desires to protect and wisely utilize its land base. As a steward 

of its most precious resource, the Community needs to make informed and timely 

decisions regarding land while addressing the Community’s pressing transportation 

issues. In order to effectively construct and maintain roads on the Reservation, the 

Community has to work within an outdated, incomplete transportation structure. 

The Community would like BIA to implement right-of-way reform that includes the 

following elements: 

A. Comprehensive Right of Way System 

The Community encourages BIA to create a comprehensive right-of-way system 

that provides current information regarding (1) existing rights-of-way, including the 

duration, scope, and transferability, etc.; and (2) allottees’ interests in land, including a system for communicating with allottees for the purpose of obtaining consent 

as required in a timely manner. 

B. Records Management 

Many rights-of-way that were granted in the distant past conveyed long term interests to the grantee. In many instances, these rights were granted for little or no 

compensation to the tribe or its members. The records to verify the intent of parties 

and the extent of the rights conveyed as expressed in conveyance and supplemental 

documents are often non-existent, lost or otherwise unavailable. Even in cases 

where documents are available, the Community has to request the documents and 

then wait indeterminate periods of time before receiving anything. 

C. Communication 

The Community expects written and timely information from BIA regarding any 

and all right-of-way issues that could potentially impact the Community, including, 

but not limited to: 

a) information regarding third parties’ interests in rights-of-way implicating any 

land within the exterior boundaries of the Reservation;

b) timely response to the Community’s right-of-way inquiries, and

c) frank, open minded discussions with BIA regarding specific right-of-way 

issues.

V. Conclusion 

The Community is initiating planning for its long term transportation needs as 

well as responding to the transportation needs of the communities surrounding it. 

Addressing future transportation needs requires partnering with other local governments and considering innovating ways to address transportation needs. The Community is open to suggestions and discussion regarding right-of-way issues, or any 

transportation issue, affecting the Reservation’s land base. 

Thank you for the opportunity to submit comments on this highly complex subject. The Community looks forward to collaborating with Federal, state, and local 

governments on these significant issues.

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PREPARED STATEMENT OF JOANN POLSTON, FIRST CHIEF, HEALY LAKE TRADITIONAL

COUNCIL

I. Introduction 

Mr. Chairman, and Members of the Committee on Indian Affairs. My name is 

JoAnn Polston. I am the First Chief of the Healy Lake Traditional Council, and a 

member of the MENDAS CHA∼AG Tribe in Alaska. I have served on the Tribal 

Council for over 10 years, and I was elected First Chief in October 2005. I work 

closely with the Healy Lake Transportation Department on issues pertaining to 

transportation within the Council’s jurisdiction. I am also the alternate on the Indian Reservations Roads Program Coordinating Committee for the Alaska Region. 

I thank the Committee for giving the MENDAS CHA∼AG Tribe an opportunity 

to share some of its concerns about transportation issues affecting its lands and 

members. While there have been many improvements in recent years, there is still 

much work to be done. My testimony will be focused on four specific topics. 

II. Delays in the TIP Approval Process Impact Road Construction Projects 

The Tribe would like to see the Transportation Improvement Program (TIP) approval process reviewed and streamlined so that projects can be approved and put 

on the TIP in a timely manner. I can provide an example of how delay in getting 

routes approved can significantly impact a project. 

In August 2006, the Healy Lake Traditional Council entered into a Memorandum 

of Understanding (MOU) with the Alaska Department of Transportation and Public 

Facilities for the design and construction of a road to connect the Village of Healy 

Lake to the State of Alaska road system. Although the MOU was executed almost 

a year ago, the project still has not been approved on the Current TIP. If the Tribe 

had to rely on its ‘‘tribal share’’ of Indian Reservation Roads (IRR) funds to fund 

construction of this project; the Tribe would be unable to use those funds until the 

road was on the TIP. Fortunately for the Healy Lake Traditional Council, the funds 

for this project were part of a separate protected section of the SAFETEA–LU appropriation, and the Tribe has been able to proceed. 

Other Tribes have not been as fortunate, and the length of time it takes for 

projects to be approved under TIP prevents many Tribes from moving forward with 

transportation projects. Road construction costs are rising at unprecedented rates; 

when Tribes are forced to postpone projects the purchasing power of their already 


712gal.eps
101

limited IRR Program funds decreases. Moreover, a simple delay in the TIP approval 

process can have a profound impact on transportation improvements, impacting not 

only Tribal members’ safety, but also the economic opportunities in villages and 

communities. 

III. Management of the Alaska Tribal Transportation Assistance Program 

Was Changed Without Tribal Consultation 

The Federal Highway Administration (FHWA) provides assistance to Tribes 

through Tribal Transportation Assistance Programs (TTAP). The TTAPs provide 

technical assistance to Tribal transportation officials and work with these officials 

to increase the capacity of Tribal governments to administer transportation programs. The TTAPs provide important training resources for Tribal transportation officials and serve as information clearing houses. 

Until very recently, the Tribal Transportation Assistance Program in Alaska (AK 

TTAP) was managed under a cooperative agreement between the Federal Highway 

Administration (FHWA) and the Eastern Washington University (EWU). Without 

consulting with Alaska Tribes, the FHWA recently re-competed the Alaska TTAP 

and entered into a cooperative agreement with the University of Alaska—Fairbanks 

(UAF). 

We are concerned about this change for two reasons. 

First, there was no Tribal consultation during the process. The FHWA did not 

seek input from Tribes concerning their transportation needs, their satisfaction with 

the services provided by the EWU TTAP, or their long-term goals for their transportation programs. As a result, Alaska tribes have no assurances that the UAF understands or will be responsive to the needs of Tribal governments. For instance, we 

understand that UAF intends to focus on ‘‘on-the-ground training’’ for individuals 

in equipment operation, road maintenance, dust control, and airstrip maintenance. 

This approach is a departure from that taken by the EWU TTAP and does not correspond with the current needs of Alaska Tribal governments. The highest priority 

for the AK TTAP should continue to be (1) providing training and a clearinghouse 

for information about contracting and compacting and all aspects of the IRR Program; and (2) for direct service Tribes, educating them on how to have the BIA accomplish the Tribe’s goals. Tribes in Alaska simply do not need technical ‘‘on-theground’’ training at this stage in the process. 

Second, we are also concerned that FHWA, in selecting UAF to host the AKTTAP, 

did not take into account the fact that the Alaska Supreme Court has ruled in other 

circumstances that operating programs for Alaska Natives violates the Alaska Constitution equal protection standards. We are therefore concerned about whether 

UAF, a State-run institution, can operate an ‘‘Indian’’ program such as TTAP. The 

result could be a shift in services away from tribal governments to services that support State Department of Transportation projects or the waste of valuable resources 

defending a lawsuit in State Court. This would defeat the purpose of the TTAP program. 

Given that UAF has already received the contract with FHWA, we will work with 

UAF to receive transportation assistance. However, we note that the award of the 

contract without Tribal consultation violates longstanding DOT policy as stated in 

DOT Order 5301.1 (November 16, 1999) to ‘‘consult with Indian tribes before taking 

any actions that may significantly or uniquely affect them.’’ Had the DOT complied 

with its own policy and consulted with Alaska Tribes before awarding (or even soliciting) the TTAP contract, Tribes would have had the opportunity to describe their 

needs and express their concerns regarding a State-run TTAP program before the 

FHWA made its decision. 

IV. Tribes are Not Receiving IRR Funding in a Timely Manner 

Tribes must be able to count on IRR Program funds being available in a timely 

manner. Delays in distributing IRR Program funds to the Alaska Region and delays 

in those funds getting distributed to Tribes can prevent Tribes from designing and 

constructing projects. Timely access to funding is especially critical in Alaska, because the construction season is often 5 months and sometimes less. 

For instance, Alaska Tribes only recently received the ‘‘notice of availability of 

funds’’ in Alaska associated with their Fiscal Year 2007 tribal shares. The notices 

came to Tribes within the past few weeks, with instructions to Tribes to get their 

budgets for these amounts prepared and sent in to the Alaska Region. Tribes are 

told that funds will be swept up and returned to FHWA by August 10, 2007. In 

other words, Tribal transportation departments are given a few short weeks in the 

height of the construction season to prepare and submit proposed budgets or else 

they risk their tribal shares being swept up for another year. 

102

Given the short construction season, untimely receipt IRR Program funds can result in a project not being started 1 year as planned and being rescheduled for the 

next construction season. The cost of labor, materials, and fuel increase each year, 

increasing the cost of delayed projects, and requiring changes to project estimates 

and budgets (causing additional engineer costs). 

Timely distribution of funds to the Alaska Region and then to Tribes will allow 

Tribes to better prepare its projects, and in the end will save on project costs. 

V. Additional Funds are Needed for Road Maintenance 

Currently, the only source of funding available to most Alaska Tribes for road 

maintenance is money received through the IRR Program. Tribes can use up to 25 

percent of their tribal share for road maintenance. Of course, if these funds are used 

for maintenance, they cannot be used on other needs, such as designing and constructing safer roads. 

Another source of maintenance funding is the BIA Road Maintenance Program. 

The BIA has taken the position that it is only obligated to maintain facilities owned 

by the BIA. Department of the Interior Indian Affairs Budget Justifications Fiscal 

Year 2008 at IA–CED–4. Because there is only one reservation in Alaska, there are 

very few BIA-owned transportation facilities. As a result, the entire Alaska region 

is only allocated a very small share of the total BIA Road Maintenance funds. Alaska has 40 percent of the Nation’s Tribes, and it is a very large state with many 

unsafe roads. Very few Alaska Tribes have access to the BIA Road Maintenance 

Program funds. 

The BIA’s policy is not in accord with the regulations that implement the BIA 

Road Maintenance Program. Under these regulations BIA Road Maintenance funds 

may be used to maintain not only BIA and Tribally-owned transportation facilities, 

but may also be used to maintain non-BIA facilities, ‘‘if the tribe served by the facility feels that maintenance is required to ensure public health, safety, and economy, 

and if the tribe executes an agreement with the owning public authority within 

available funding.’’ 25 C.F.R. § 170.803(a)(2). We ask that the Committee work with 

us to ensure that the BIA follows its own regulations and allocates funding to the 

Alaska region on par with the allocations received by the other BIA regions. 

We join the Tribes in the rest of the lower forty-eight States in advocating for a 

significant increase in funding for the BIA Road Maintenance Program. These funds 

are necessary not merely to safeguard the Federal investment in road construction; 

more importantly, to safeguard our lives and the lives of future generations. We 

stress, however, that these funds must be available to Alaska Tribes—as required 

by regulations—as well as to Tribes with facilities that are owned by the BIA. 

VI. Conclusion 

Thank you for allowing the MENDAS CHA∼AG Tribe to present testimony to this 

Committee. We appreciate the opportunity to share our concerns about transportation issues in Alaska and the effect of unmet transportation needs on Alaska Natives and all Tribes. 

PREPARED STATEMENT OF THE HO-CHUNK NATION

Introduction 

The Ho-Chunk Nation of Wisconsin would like to thank the Committee for the 

opportunity to voice its opinion regarding the Indian Reservation Roads (IRR) Program. The Nation is relatively new in its experience with the IRR Program. It has 

only been within the last 2 years that the Nation has begun to realize any significant funding from the program and the corresponding benefits. With the assistance 

from this program, the Ho-Chunk Nation has been able to provide tangible solutions 

to safety and access problems that have plagued tribal members for many years. 

The Nation has only recently been able to more fully participate in the IRR Program because of the relatively recent changes in Federal Code governing this program. These changes have allowed historically underserved tribes to finally access 

greatly needed funding. 

The Ho-Chunk Nation is one of the few tribes in the contiguous 48 states that 

does not have a single situs reservation, and for purposes of the IRR Program is 

categorized as a tribe without defined boundaries. This is significant because only 

until recently, only roads within a reservation were able to receive funding. These 

changes rectified an inherent discrimination in the program by recognizing that our 

tribal members faced the same transportation challenges as those who live on a reservation. 

103

The Nation is grateful for its ability to participate in the program and would like 

to address two issues for consideration by the Committee. We would like to encourage the Committee to first, increase overall funding for the program upon reauthorization, and second, do what it can to maintain the current funding formula at least 

until all tribes have updated their road inventories. 

Overall Funding 

As much of the other testimony has pointed out, funding for transportation construction needs in Indian country is still inadequate. The Nation fully supports the 

recommendation of Mr. Pete Red Tomahawk regarding increasing the funding for 

the IRR Program by at least $25 million annually in the next highway reauthorization bill. 

Not only are construction costs rising, but as more tribes update their individual 

inventories, more miles will be added to the overall inventory. In fact, thousands 

of miles of roads have been added to the inventory in recent years. This has reduced 

some tribe’s relative share of funding and created a certain level of animosity between tribes. All tribes have legitimate transportation needs, and deserve adequate 

funding. It is imperative to ensure adequate funding levels for the program in order 

to avoid this very counterproductive competition for scarce resources. 

Funding Formula 

The Ho-Chunk Nation agrees with the position of the Bureau of Indian Affairs, 

as stated in Mr. Gidner’s testimony, that there should be no changes to the current 

funding formula until all tribes have significantly updated their inventory. The IRR 

Coordinating Committee has submitted recommendations for modifications of the 

funding formula to the Secretary. These recommendations would be devastating to 

a number of tribes in the Midwest region. The Nation believes that once tribes update their inventories, any perceived inequities will self-correct. 

The Nation believes the formula should not be changed for the following reasons: 

I.) The IRR Program Is Working Just as Congress Intended it to Work 

Beginning with the passage of the Transportation Equity Act for the 21st Century 

(TEA–21) in 1998, Congress has modified the IRR Program so that the funding distribution would balance the interests of all tribes and enable all tribes to participate 

in the program. In TEA–21, Congress changed the allocation method and included 

more roads eligible for funding. The old funding formula was changed in order to 

include smaller and historically underserved tribes. The inventory of roads was expanded to include tribally owned public roads and other IRR eligible transportation 

facilities identified by tribes to more accurately measure transportation assistance 

needs and to match the projects on which IRR Program funding is spent. 

More recently, Congress passed a law that defined what roads are eligible for inclusion in the IRR Program, clearly identifying an expansion of the inventory. 

Under the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A 

Legacy for Users (SAFETEA–LU), Congress added language to 23 U.S.C. § 202 to 

include:

(IV) community streets or bridges within the exterior boundary of Indian reservations . . . and other recognized Indian communities . . .

(V) primary access routes proposed by tribal governments, including roads between villages, . . .

This expansion of the roads intended to be included in the IRR Program is punctuated by further language from this subsection that directs the Secretary of the 

DOT that this definition is just a ‘‘minimum’’ of what is to be included. Language 

in the section goes on to say that:

(iv) Nothing in this subparagraph shall preclude the Secretary from including 

additional transportation facilities that are eligible for funding under the Indian 

reservation roads program in the inventory used for the national funding allocation if such additional facilities are included in the inventory in a uniform and 

consistent manner nationally.

The Nation believes that Congress clearly intended the IRR Program to include 

more roads that are eligible for funding in order to reflect what the true transportation needs of Indian tribal members are. It is the responsibility of the Department 

of Interior along with the Department of Transportation to carry out the wishes of 

policy makers as codified by a law, passed by both houses of Congress, and signed 

by the President of the United States. The proposed modifications to the Federal 

regulations currently being contemplated by the IRR Program Coordinating ComVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00107 Fmt 6601 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
104

mittee severely restrict the types and mileage of roads in the program. This is 

counter to the express intent as stated by Congress and should not be adopted. 

II.)Tribes Have Simply Followed the Rules and Should Not Be Penalized for It 

The Federal Highway Administration’s own ‘‘Planning Glossary’’ updated December 1, 2006, includes an operational definition of IRR Inventory as:

An inventory of roads which meet the following criteria: . . . (b) public roads 

that provide access to lands, to groups, villages, and communities in which the 

majority of residences are Indian, (c) public roads that serve Indian lands not 

within reservation boundaries, and (d) public roads that serve recognized Indian 

groups, villages, and isolated communities not located within a reservation.

The Ho-Chunk Nation has been instructed by the Federal Government that this 

is the rule to follow with regards to what roads can be included in the IRR Program. 

The Ho-Chunk Nation has been very successful at getting roads included into the 

eligible inventory. Some of the proposed regulation modifications being considered 

by the IRR Program Coordinating Committee would retroactively prohibit roads already approved as eligible from receiving any funding. This would be a travesty. It 

would be completely unfair to the Ho-Chunk Nation and other tribes to have gone 

through all the required work only to have roads pulled from consideration for funding. Those modifications must not be adopted.

Conclusion 

The Nation would again like to thank the Committee for holding this hearing and 

for the opportunity to express our opinion on these issues. We look forward to working with the Committee over the next few years as we all try to address the major 

transportation needs of tribes. 

PREPARED STATEMENT OF C. JOHN HEALY, SR., PRESIDENT/TRANSPORTATION

DIRECTOR, FORT BELKNAP INDIAN COMMUNITY

I. Introduction 

Mr. Chairman and Members of the Committee on Indian Affairs. My name is 

John Healy. I am the Transportation Director for the Fort Belknap Indian Community located in North Central Montana. I am also the recently elected President of 

the Intertribal Transportation Association (ITA), I am also on the Advisory Board 

for the Northern Plains Tribal Technical Assistance Program which represents 26 

Tribes in North Dakota, South Dakota, Wyoming, Montana, and Nebraska. I was 

also on the joint Tribal-Federal Transportation Equity Act for the 21st Century 

(TEA–21) Negotiated Rulemaking Committee which drafted the BIA’s regulations 

for the IRR Program before they were finalized by the Department of the Interior. 

I have worked in the Tribal transportation field for over 13 years. 

On behalf of the ITA and member tribes I would like to submit the following comments. 

The original concept of ITA was to represent member tribes in the Transportation 

Area on a National Level. ITA provides a network and forum to discuss vital tribal 

transportation issues, this is even more important now under SAFETEA–LU. 

The Fort Belknap Indian Community Council which is the governing body for the 

Gros Ventre and Assiniboine Nations on the Fort Belknap Indian Reservation in 

Montana. The Fort Belknap Indian Reservation is located in the north central part 

of Montana. It falls approximately forty miles south of the Canadian border from 

the Providence of Saskatchewan, and twenty miles north of the Missouri River from 

Robinson Bridge. It is bordered on the east and west by survey lines established 

when the reservation was created. The reservation encompasses an area of 

724,147.6 acres; it is rectangular in shape with an average width of 28 miles wide 

and 40 miles in length, and has an enrolled membership of 5,256 people. Our on 

reservation population is approximately 4,000, with approximately 500 miles of Indian Reservation Roads. 

The Fort Belknap Indian Community Council and our Chairperson, Julia Doney, 

recognize the importance of transportation infrastructure as a key to our Tribe’s future economic and social well being. 

II. Key Recommendations to Improve Tribal Transportation Policies 

Nearly 20 years ago, this Committee introduced legislation to overhaul the Indian 

Self-Determination Act. The legislation, which became P.L. 100–472, recognized the 

growing capability of Tribes to assume control over Federal programs. The Indian 

Self-Determination Act empowered Indian Tribes by transferring control to the 

Tribes and providing them the financial resources to succeed. The same thing must 

105

1S. Rep. No. 100–274, 100th Cong., 1st Sess., p. 4.

happen in the field of transportation. What this Committee said in 1987 is true in 

2007:

‘‘The conditions for successful economic development on Indian lands are essentially the same as for any other predominantly rural community. There must 

be community stability, including adequate law enforcement and judicial systems and basic human services. There must be adequate infrastructure including roads, safe water and waste disposal systems, and power and communications utilities. When these systems are in place, Tribes are in the best position 

to implement economic development plans, taking into account the available 

natural resources, labor force, financial resources and markets.’’ 1

Our key recommendations to Congress and the Federal agencies to improve transportation policies in Indian country generally, and for the IRR Program in particular, which I elaborate upon more fully in my testimony, are as follows:

1. Fund the IRR Program for the next reauthorization in installments that increase annually by at least $25 million from $475 million in FY 2010 to $600 

million in FY 2015, and restore the obligation limitation deduction exemption 

that existed for the IRR Program under the Intermodal Surface Transportation 

Efficiency Act of 1991 (ISTEA); increase funding for the IRR Bridge Program 

from $14 million to $50 million in the next reauthorization with increases of at 

least $10 million annually;

2. Increase funding for the BIA Road Maintenance Program to at least $150 

million annually to promote traffic safety and to ensure that the Federal and 

Tribal investment in transportation infrastructure is maintained;

3. Enforce the statutory requirement in SAFETEA–LU which mandates that 

the BIA must make IRR Program funds ‘‘immediately available’’ for the use of 

Indian Tribes within 30 days of the BIA’s receipt of the funds from the FHWA;

4. Simplify the award process by which Federal transportation funds are distributed to Indian Tribes by creating uniform grant eligibility, application, and 

administration criteria;

5. Develop model funding agreements for use by the Department of the Interior 

and the Department of Transportation to facilitate the efficient transfer of 

transportation funding and program authority to Indian Tribes;

6. Insist that the BIA and FHWA complete the comprehensive national transportation facility inventory update authorized in SAFETEA–LU to properly document all Tribal transportation facilities and to protect the integrity of the IRR 

Program funding formula;

7. Encourage the President to fill the position of Deputy Assistant Secretary for 

Tribal Government Affairs established under SAFETEA–LU;

8. Increase the number of Department of Transportation programs which Tribes 

may participate in as direct funding recipients from the Federal Government 

rather than as sub-recipients through the States (e.g., Safe Routes to Schools 

Program, High Risk Rural Roads Program, and the Highways for Life Program);

9. Establish a Federal Lands Highways Safety Program for Indian Reservation 

Roads, establish a Tribal set aside for the High Risk Rural Road Program, and 

increase funding for the Federal Transit Administration’s (FTA) Tribal Transit 

Grant Program to $50 million annually;

10. Increase funding to the successful Tribal Transportation Assistance Programs (TTAPs) to at least $2.5 million annually to increase technical training 

and promote awareness in Indian country of ‘‘best practices’’ in transportation 

planning, design, construction, maintenance, and highway safety measures;

11. Promote the use of innovative financing techniques in standard Indian SelfDetermination contracts and self-governance compacts to provide Tribal governments with better tools to reduce their road construction backlog; and

12. Carry out right-of-way reform in Indian country to reduce costs and expedite 

the design, construction and reconstruction of Tribal roads and bridges.

The Indian Reservation Roads Program is predominantly a rural roads program. 

Congress should invest in highway and surface transportation projects in rural 

areas as well as metropolitan areas. If rural America and Indian country are to 

prosper, there must be rural connectivity and reliable access to the national transportation system. 

106

III. Tribal Transportation Successes 

Indian Tribes have achieved many successes in the transportation field over the 

last several years. More than ever before, Tribes are working in partnership with 

local government and State departments of transportation on mutually beneficial 

projects. With the enactment of SAFETEA–LU, Tribes are working on a government-to-government basis with the Federal Highway Administration (FHWA) and 

the BIA to improve transportation systems in Indian country. Indian Tribes have:

• taken greater control of transportation programs: five Indian Tribes, negotiated 

historic IRR Program and funding agreements with FHWA, as authorized under 

SAFETEA–LU, to assume the Secretary of the Interior’s duties for the IRR Program;

• assumed the authority to approve PS&E (plans, specification & estimate) packages, thereby maintaining better control over construction scheduling and cost;

• used the authority under SAFETEA–LU to allocate up to 25 percent of their 

annual IRR Program allocation for road maintenance needs to maintain Tribal 

infrastructure built with IRR Program funds;

• witnessed the joint Federal-Tribal initiation of SAFETEA–LU’s Tribal Transit 

Grant Program which was a model of government-to-government relations. The 

Federal Transit Administration (FTA) consulted with Indian Tribes, responded 

favorably to Tribal recommendations, received applications from nearly 100 Indian Tribes, and awarded over 60 transit grants to eligible Tribal recipients in 

FY 2007;

• collaborated with Members of Congress and FHWA Administrator Capka to successfully reverse an FHWA policy that would have prevented Tribes from being 

eligible subbrecipients of SAFETEA–LU’s Safe Routes to Schools Program 

grants. Tribal access to these funds will permit Tribes to contract with States 

to promote, develop and improve safe walking and bike routes to schools for elementary and middle-school children;

• collaborated with States on comprehensive highway safety and transportation 

and land use plans, worked on cooperative ventures to improve traffic crash reporting on Indian reservations; and jointly worked on construction, employment 

and materials testing (Eastern Shoshone and Northern Arapaho Tribes and Wyoming DOT);

• partnered with State DOTs on IRR Program highway projects funded through 

the Public Lands Highway Discretionary Grant Program which brings additional capital to Indian country by financing projects that otherwise could not 

be built by Tribal governments from other funding sources;

• instituted safety measures such as the child restraints and reduced infant and 

child deaths, cutting these rates dramatically; and

• brought third-party lenders to Indian country to help Tribes finance road construction projects which have saved Tribes money that would otherwise be consumed by inflation and additional mobilization expenses.

Indian Tribes celebrate these successes, and they want to see them repeated 

throughout the country. These examples can serve as ‘‘best practices’’ in transportation planning and government-to-government cooperation. Tribal governments are 

better positioned today to tackle problem areas in Tribal transportation than ever 

before, and they can save lives by intelligent planning, better design, implementing 

highway safety programs and conducting regular road maintenance and periodic 

road safety audits. 

We just need adequate resources and sensible Federal transportation laws, regulations, and policies which aid, rather than hinder us, in getting the job done. 

IV. Indian Reservation Roads Are Not Safe Roads 

Despite this progress, we need Congress and the Administration to partner with 

Tribal governments to dramatically reduce highway injuries and fatalities that 

plague Indian communities at rates several times above the national average. We 

must do more to keep our children safe when they walk to school, ride a bus, or 

jump into their parents’ cars and trucks. We must educate them early to buckle up 

and not to drink and drive so that when it is their turn to get behind the wheel, 

they will be responsible drivers. Tribal communities must also change bad behaviors 

and set a good example for our youth. 

Congress and the Administration must also do their parts. Tribes are struggling 

to find the funds necessary to meet the tremendous transportation needs in Indian 

Country. Congress and the Administration must recognize that Indian Tribes have 

the most rudimentary transportation infrastructure in the country and lack the 

107

2 ‘‘Transportation Planning on Tribal Lands,’’ Melissa Savage, National Conference of State 

Legislatures, August 2006, p. 1. 3 ‘‘Safety Belt Use Estimate for Native American Tribal Reservations,’’ National Highway 

Traffic Safety Administration, DOT HS 809 921, Final Report, October 2005, p. 1. 4 Id.

5 Center for Disease Control, Injury Center, Atlas of Injury Mortality Among American Indian 

and Alaska Native Children and Youth, 1989–1998, Executive Summary (www.cdc.gov/ncipc/

pub-res/AmericanlIndianlInjurylAtlas/05Summary.htm). 6 ‘‘Improving Motor Vehicle Crash Reporting on Nine South Dakota Indian Reservations,’’ 

South Dakota Department of Transportation, June 2007. 7 Id.

funds needed to maintain roadways in a safe condition. Tribal transportation programs have too few personnel to attend to required activities. 2 Indian Tribes should 

be treated as equal partners. The significant progress Tribes have made in the last 

two decades to assume direct responsibility for their transportation systems should 

be applauded and rewarded by giving Tribal governments the financial resources 

they need to build and maintain safe roads and save lives. Transportation planning, 

design, construction, and maintenance are not occasional occurrences, and Tribal 

governments must have the resources they need to carry out this core governmental 

function. No one else can do it better than the Tribes themselves. 

Adequate funding levels are needed if we are to design safer roads with features 

such as guard rails, rumble strips, clearly visible signs, reflective markers, and 

wide, level shoulders. We must increase law enforcement patrols to enforce traffic 

laws and respond to accidents more quickly. We must provide adequate Emergency 

Medical Services and associated medical facilities so that prompt medial assistance 

is available to the injured within the critical ‘‘golden hour’’ after an accident. And 

we must adequately maintain routes in Indian country so that poor road maintenance does not continue to be a major contributing factor to traffic accidents in Indian country. Poor road maintenance is a silent killer that preys on the distracted 

mother, the sleep-deprived father, the inexperienced son or daughter, and the aunt 

or uncle who drive while impaired. 

A. Grim Statistics 

Our future goals, for safe, well maintained streets are clear, but the present reflects a grim reality. Native Americans suffer injury and death driving and walking 

along reservation roadways at rates far above the national average.

• Motor vehicle injuries are the leading cause of death for Native Americans ages 

1–34, and the third leading cause overall for Native Americans; 3

• The motor vehicle death rate for Native Americans is nearly twice as high as 

other races; 4 motor vehicle crashes were the leading cause of death among Native Americans age 1 to 19, and the Aberdeen, Billings, and Navajo Areas had 

motor vehicle-related death rates at least three times greater than the national 

rates; 5

• Native Americans in South Dakota are three times more likely to be killed in 

a motor vehicle accidents than the rest the of State’s non-Native population; 

from 2001 to 2005, over 25 percent of individuals who lost their lives in traffic 

accidents in South Dakota were Native American even though Native Americans comprise only 8.3 percent of the State’s population; 6

• The South Dakota Department of Transportation (SDDOT), working with ICF 

International, Inc., Interstate Engineering, Inc., and the State’s Indian Tribes, 

in a recently published report, found that 737 accidents (or 64 percent of all 

motor vehicle accidents) on nine reservations in South Dakota in 2005 were not 

reported; 7

• 123 North Dakotans were killed in traffic accidents in 2005, an increase of 23 

percent over 2004; 4,360 North Dakotans were injured. Eighty-eight percent of 

the fatal accidents in North Dakota occurred in rural areas (nearly 9 out of 

every 10 fatalities);

• According to estimates by the National Safety Council, the economic cost in 

2005 for each fatality in terms of lost wages, medical expenses, administrative 

expenses, motor vehicle and property damage, and employer costs, exceeded 

$1.14 million for each life lost and over $50,000 for every person injured. In 

2005, for North Dakota alone, those figures translate to a cost of nearly $360 

108

8 ‘‘North Dakota Vehicle Crash Facts for 2005,’’ North Dakota Department of Transportation, 

Crash Facts (www.nd.gov/dot/dlts.html). 9 ‘‘Fatal Motor Vehicle Crashes on Indian Reservations 1975–2002,’’ National Center for Statistical Analysis, National Highway Traffic Safety Administration, DOT HS 809 727, Technical 

Report, April 2004, p. 1. 10 Id. 11 Id., p. 2. 12See ‘‘Race and Ethnicity in Fatal Motor Vehicle Traffic Crashes 1999–2004,’’ National Center for Statistics & Analysis, DOT HS 809 956, Technical Report, May 2006, p. 14. 13 ‘‘Safety Belt Use Estimate for Native American Tribal Reservations,’’ NHTSA, DOT HS 809 

921, October 2005, p. 1. 14 ‘‘Pedestrian Safety in Native America,’’ FHWA–SA–04–007 Technical Report, September 

2004. 15 ‘‘Fatal Motor Vehicle Crashes on Indian Reservations 1975–2002,’’ p. 2. 

million for the State’s 123 traffic fatalities ($140.2 million) and 4,360 traffic injuries ($218 million); 8

• 5,962 fatal motor vehicle crashes were reported on reservation roads between 

1975 and 2002 with 7,093 lives lost. The trend is on the increase, up nearly 25 

percent to over 284 lives lost per year in the last 5 years of study; 9

—76 percent of the fatalities were not seat belt or child safety seat restrained 

compared to 68 percent nationally; 10

—Since 1982, 65 percent of fatal crashes occurring on reservations were alcohol 

related compared to 47 percent nationwide; 11

• According to information presented by the Michigan Tribal Technical Assistance 

Program (Michigan Technological University), nearly three-quarters (73 percent) of Native American children under age 5 who died in traffic accidents 

were not in a child safety seat. Less than 7 percent were wearing a seat belt. 

More than half of these fatalities could have been prevented if these children 

had been restrained; 12

• NHTSA data shows that approximately 3 out of every 4 fatalities on Indian reservations were not restrained at the time of the motor vehicle accident. In 2002, 

only 16 percent of motor vehicle fatalities on reservations were restrained; 13

and 

• American Indians have the highest rates of pedestrian injury and death per 

capita of any racial or ethnic group in the United States. 14

These statistics are shocking and bear witness to the consequences of maintaining 

the status quo concerning Federal Tribal transportation policies. I am troubled by 

the disparity between national traffic safety statistics and the statistics coming out 

of Indian country. According to the National Highway Traffic Safety Administration 

(NHTSA): ‘‘The Department has made transportation safety its highest priority. The 

Secretary has mandated an ambitious DOT-wide safety goal to reduce the traffic fatality rate to no more than 1 fatality per 100 million vehicle miles traveled (VMT) 

by the end of 2008.’’

We have over 11 million VMT in the IRR Program inventory, yet the average 

number of Native Americans killed in motor vehicle accidents annually throughout 

NHTSA’s 28-year study was 213. While the number of fatal crashes in the Nation 

during the same period declined 2.2 percent, the number of fatal motor vehicle 

crashes per year on Indian reservations increased 52.5 percent. 15

If Tribal governments, the Departments of the Interior and Transportation, and 

State DOTs are to reverse the traffic fatality rates among Native Americans, Congress will need to direct more resources to the many factors that contribute to highway fatalities than are presently available. Many traffic accidents that occur on reservation roads can be prevented through application of the four ‘‘Es’’:

1. Education; 

2. Enforcement; 

3. Engineering; and 

4. Emergency Medical Services.

B. Invest in Prevention 

IfI leave you with one message today, Mr. Chairman, it is ‘‘prevention.’’ As much 

as I wish it, Congress will not appropriate the billions of dollars needed to redress 

all the unmet transportation needs in Indian country in next year’s appropriations 

acts. But I am asking Congress to identify and fund those preventative measures 

that Federal, State and Tribal governments can take to reverse the consequences 

of years of neglect of Tribal transportation infrastructure, as well as to help us curb 

109

16 National Conference of State Legislatures, p. 2. 17 ‘‘AGC’s Construction Inflation Alert,’’ Reported by AGC Chief Economist Ken Simonson, 

September 2006, http://www.agcak.org/akancasn/doc.nsf/files/7DBB5CEFBE545B13872571 

FF0080B299/$file/AGCsConstructionInflationAlert.pdf 18 Id., p. 2

the societal behaviors which contribute to making Indian reservation roads the most 

dangerous roads in America. 

But it must be a combination of resources to reconstruct and repair unsafe roads, 

provide law enforcement, emergency medical services, and educate Native American 

communities to make highway safety a priority. Anyone component alone, without 

the support of the other components, will not be as effective. 

I speak from experience regarding the damage that traffic fatalities cause to Tribal families. My brother Jay, was killed 7 years ago in an automobile accident on 

the Reservation. 

Specific recommendations to improve the delivery of transportation services in Indian country. 

V. Recommendations to Improve Federal Transportation Policies in Indian 

Country 

Tribes are assuming greater responsibility for transportation planning, design, 

construction and maintenance. TEA–21, SAFETEA–LU, and the IRR Program regulations have created additional opportunities for Indian Tribes to interact with State 

Departments of Transportation on mutually beneficial transportation projects, to negotiate road maintenance agreements with State governments that prolong the useful life of IRR-financed routes without the approval of the Interior Secretary, to conduct long range transportation planning, hire their own engineers to finalize PS&E 

packages, and consult with Metropolitan Planning Organizations and Regional Planning Organizations on long-term transportation planning goals. Mr. Chairman, we 

must encourage these partnerships so that consultation is the norm and all governments work to achieve mutually agreed-upon transportation goals. This can be the 

future of the Indian Reservation Roads Program if Congress and the Administration 

will take the following actions: 

1. Increase Funding for the IRR Program in the Next Highway Reauthorization Bill 

to Meet Tribal Transportation Needs of the 21st Century 

The backlog of unmet transportation construction needs in Indian country is in 

the tens of billions of dollars. It hinders economic development, education, and the 

delivery of housing and health care to millions of Native Americans who reside on 

Indian reservations simply because it raises the cost of doing business on Indian 

reservations. Infrastructure should be a Tribal resource, but it is not. It is a hazard. 

It is not exceptional for Indian Tribes to operate one- and two-person transportation departments. At Fort Belknap, myself and my Transportation Planner comprise the entire Transportation Department. While State Departments of Transportation, city and county governments and Metropolitan Planning Organizations 

(MPOs) are staffed with engineers and other professionals to plan transportation 

projects and work with stakeholders to prioritize transportation projects, Tribal governments do not have comparable resources to operate complimentary transportation programs. 16 Until the Federal agencies request and Congress appropriates 

more resources, Tribal governments will always be playing ‘‘catch up’’ with their 

State and local government counterparts. Indian country cannot be expected to rectify our physical transportation infrastructure needs if we do not also have the financial resources to properly staff and operate Tribal government departments to 

be capable of coordinating with our Federal, State and local government counterparts. 

According to data compiled by the Associated General Contractors of America 

(AGC), since 2004 the construction industry has been hit by a series of significant 

price increases impacting a variety of basic construction materials. It was AGC’s estimate that a ‘‘realistic inflation target for construction materials appears to be 6–

8 percent, with periods of 10 percent increases quite possible.’’ 17 These cost increases outpaced consumer and producer price indices significantly. According to the 

AGC report, for the 12 months ending August 2006, the cost of inputs for highway 

and street construction was up 13.8 percent, the producer price index (PPI) for 

‘‘other heavy construction’’ was up 10.3 percent, and the index for non-residential 

buildings was up 8 percent. 18 The report noted that: ‘‘The highway construction 

index is driven to a greater degree than the building construction indexes by the 

cost of steel bars . . . and plates (for bridges), ready-mixed concrete, asphalt, and 

110

19 Id. 20 ‘‘Road Safety Audit for Improvements to Standing Rock Sioux Tribe Reservation Roads,’’ 

Hamilton Associates, October 2005, pp. 10–11. 

diesel fuel, all of which have experienced double-digit cost increases in the past 12 

months.’’ 19

Congress authorized $450 million for the IRR Program for FY 2009. If Tribes are 

to maintain the positive gains made in TEA–21 and SAFETEA–LU and keep up 

with construction inflation which is running into double digits in many BIA Regions, 

we respectfully request that Congress authorize funding increases to the IRR Program in the next highway reauthorization bill of at least $25 million annually, combined with the restoration to the IRR Program of the obligation limitation exemption which existed prior to TEA–21. These funding increases for Indian reservation 

roads are the absolute minimum needed to keep up with inflation, let alone meet 

the growing needs of Indian country. 

Congress must sustain and continue its commitment to improving transportation 

infrastructure on Indian reservations if the gains of the last few years are to be 

maintained. This commitment will spur economic development on Indian reservations more than any other single Congressional action. 

2. Increase funding for the BIA Road Maintenance Program within the Interior and 

Related Agencies Appropriations Act 

Funding for the BIA Road Maintenance Program is a national disgrace. The Administration’s use of the Program Assessment Rating Tool (PART) Performance 

Measurements to justify annual reductions to the BIA Road Maintenance Program 

is shortsighted and fails to protect these valuable taxpayer-funded infrastructure investments. The Office of Management and Budget’s road budget makes no economic 

sense and squanders taxpayer money. Failing to adequately budget for the BIA 

Road Maintenance Program also violates Federal law. 

When, in SAFETEA–LU, Congress authorized Tribes to spend up to 25 percent 

of their IRR Program dollars for maintenance, Congress expressly stated that:

‘‘The Bureau of Indian Affairs shall continue to retain primary responsibility, including annual funding request responsibility, for road maintenance programs 

on Indian reservations. The Secretary [of Transportation] shall ensure that [IRR 

Program] funding made available under [section 204(c) of Title 23] for maintenance of Indian reservation roads for each fiscal year is supplementary to and 

not in lieu of any obligation of funds by the Bureau of Indian Affairs for road 

maintenance programs on Indian reservations.’’

23 U.S.C. § 204(c), as amended.

The opposite of what Congress intended in SAFETEA–LU is occurring. As funding 

for the IRR Program goes up as authorized under SAFETEA–LU, the Administration submits budgets to Congress to reduce funding for the BIA Road Maintenance 

Program. Newly built or reconstructed roads must be maintained if they are to meet 

their design life and provide safe passage for people, goods and services. 

Poorly maintained roads in the Dakotas have cracks from frost heave, rutted 

pavement from tire wear, prairie dog damage and faded and worn pavement markings. These compromised conditions contribute to traffic accidents by degrading the 

pavement surface and can contribute to a driver losing control in snow or rain and 

at high speeds. 20

The BIA Road Maintenance Program is so poorly funded that there is no allowance for even emergency road maintenance needs to address life threatening circumstances that result from a ‘‘catastrophic failure or natural disaster.’’ As stated 

in the IRR Program regulations, examples of emergency maintenance include ‘‘ice 

and snow control, traffic control, work in slide areas, repairs to drainage washouts, 

retrieving hazardous materials, suppressing wildfires, and repairing the ravages of 

other disasters.’’ 25 C.F.R. § 170.812. Every BIA Region experiences emergency road 

and bridge maintenance needs yet lacks the resources to respond to them. 

The following table illustrates the see-saw funding levels for the BIA Road Maintenance Program since 1980.

111

In recent years, the BIA Road Maintenance Program budget, as a percentage of 

the IRR Program appropriation for the same year, has fallen below 10 percent. In 

1990, Congress appropriated $30.598 million which represented 37.7 percent of the 

combined maintenance and construction budgets. But by 2000, road maintenance as 

a percentage of available maintenance and construction funding had fallen to 9 percent and funding dropped to $26.437 million. 

At its high watermark fifteen years ago, in 1992, the BIA Road Maintenance Program received $41 million and accounted for 25.7 percent of the combined road 

maintenance and construction appropriation allocation for the IRR Program. According to data in the Roads Inventory Field Data System (RIFDS), between 1996 and 

2006, the IRR Program inventory grew nearly 74 percent, from 49,132 miles to 

85,454 miles. If the Administration’s FY 2008 funding request for the BIA Road 

Maintenance Program is approved by Congress, Road Maintenance funding will fall 

to $26 million, or 6.1 percent of total maintenance and IRR Program construction 

funds, its lowest percentage level in over 56 years. 

To spend six cents of every dollar on road maintenance when other public authorities spend many times that amount does not protect the investment which the 

Unites States and Indian Tribes have made in transportation infrastructure. This 

funding gap also exacerbates the backlog of unmet construction need by cutting the 

useful life of roads in half and will lead to more traffic injuries and fatalities. The 

lack of adequate road maintenance funding hinders every other form of financial assistance to Indian country, thus making it more difficult for the United States and 

Indian Tribal governments to achieve their stated Indian policy goals. 

a) The PART Performance Measurement of the BIA Road Maintenance Program 

Misses the Mark 

The Administration’s PART Performance Measurement acknowledged that state 

and county governments provide more resources per mile than the BIA. It noted 

that the majority of the BIA road system (2⁄3 of the system) is unimproved and earth 

surface (dirt) and, ‘‘therefore, requires far more extensive methods to maintain for 


712hea.eps
112

21See OMB’s Program Assessment Rating Tool Performance Measurement for the BIA Road 

Maintenance Program (2004) (www.whitehouse.gov/omb/expectmore/detail/10002352.2004.html). 22 Id. 23 Id.

public use.’’ 21 The PART evaluation of the BIA Road Maintenance Program concedes that: 

‘‘The problem is (1) local public entities are refusing to use their HTF [Highway 

Trust Funds] funding to reconstruct their roads/bridges when they have met 

their design life, forcing Tribes to redirect their IRR HTF funding to reconstruct 

these roads/bridges; and (2) local public entities do not maintain their roads 

adequately requiring these roads/bridges to be reconstructed more frequently. 

This results in ineffective use of BIA road maintenance resources and Tribal 

HTF resources.’’ 22

Is it any wonder that the BIA Road Maintenance Program is scored by OMB as 

not demonstrating results? But rather than recognizing that the poor performance 

of the BIA Road Maintenance Program is due in large part to insufficient funding, 

and requesting additional funding to address this problem, the Administration has 

used the poor PART Performance Measurement as a justification for seeking less 

funding for the BIA Road Maintenance Program. Recognizing that under Administration policies, funding is tied to the PART Assessment, the IRR Program Coordinating Committee, in January 2007, asked the BIA to have officials responsible for 

the PART Performance evaluation of the BIA Road Maintenance Program to brief 

the Committee on the evaluation, and identify ways to improve the Program’s rating. The BIA has been unresponsive and this briefing still has not occurred.

It is the United States’ statutory obligation under SAFETEA–LU and other Federal laws to maintain the IRR Program system of roads. Common sense dictates 

that if taxpayer dollars are used to finance a public road in Indian country, the 

United States should also ensure that funds are adequate to ensure that the full 

useful life of the public road is met. Are not the roads over which millions of Native 

Americans and others travel each day just as important to the Federal Government’s trust responsibility to Tribal resources as the land over which the roads lie? 

The authority granted Indian Tribes in SAFETEA–LU to use up to 25 percent of 

their annual IRR Program funds for maintenance purposes does not excuse the Interior Department of its statutory and moral obligation to keep IRR Program roads 

safe and adequately maintained. 

b) Indian Reservation Roads Cost More to Maintain But Receive Less 

In January 2007, the Coordinating Committee provided BIA officials with statistics (Caterpiller Performance Handbook, 1999) that showed that the typical 5-year 

cycle maintenance costs for a gravel road—the predominant road type in Indian 

country—is $4,160 per year per road mile for grading, resurfacing, and re-graveling. 

To demonstrate how bad the shortfall in maintenance funding is, if Congress appropriated the 1999 estimate of $4,160 for the 34,885.3 miles of just the BIA- and 

Tribally-owned routes now included in the BIA’s RIFDS, made no adjustment for inflation, and excluded funding for routes owned by States, counties, townships, etc., 

and appropriated an additional $20 million to maintain the approximately 1,200 

BIA- and Tribally-owned bridges included in the IRR Program inventory (which represent only 27.5 percent of the 4,301 IRR Bridges), the Road Maintenance Program 

budget would be $165.122 million for FY 2008 ($145.122 million + $20 million). The 

Administration’s FY 2008 Road Maintenance request of $26 million is only 15.75 

percent of the $165.122 million figure.

The road maintenance funding estimate I have proposed excludes any funding to 

maintain routes and bridges now included in RIFDS which are owned by public authorities other than the BIA and Tribes. But, as noted by OMB, many of these roads 

are being and frankly must be maintained by Tribal governments in order to provide critical access to Tribal communities. 23 In fact, as of today, there are 86,759 

miles in RIDFS (51,873 miles of non-BIA and Non Tribally owned routes) and 4,301 

bridges, owned by both Federal, Tribal, State, county, township, and other State 

subdivisions. 

If Tribes and the Federal Government invest taxpayer dollars to build and reconstruct roads in Indian country, it makes sense to adequately maintain these routes 

to improve their useful life. If pennies are spent on road maintenance, dollars will 

need to be spent on road reconstruction, and many more dollars on the societal cost 

of traffic fatalities and injuries. 

ITA, NCAI and many Tribal leaders have requested at least a $100 million funding level for the BIA Road Maintenance Program. The BIA has acknowledged that 

113

24 ‘‘Transportation Serving Native American Lands,’’ TEA–21 Reauthorization Resource Paper, 

BIA (May 2003), p. 32. 

it requires at least $120 million to annually maintain BIA-owned roads and bridges, 

$50 million per year for bridge rehabilitation and replacement, and $100 million per 

year for upgrading and expanding transit services and systems. 24

Given the stark statistics discussed above, we respectfully request that Congress 

appropriate at least $150 million for the BIA Road Maintenance Program to maintain IRR Program roads and bridges to a minimally adequate standard. 

3. The BIA Must Comply with SAFETEA–LU’s Mandate to Distribute Available IRR 

Program Funds For the Use of Indian Tribes Within 30 Days of Receipt of the 

Funds 

One of the biggest problems I have witnessed in the operation of the IRR Program 

is the unnecessary delay by the BIA in distributing IRR Program allocations among 

the 12 BIA Regions and, from these Regional Offices, to the Tribal governments that 

have chosen to contract the IRR Program and BIA Road Maintenance Program 

under the ISDA. Congress was clear in SAFETEA–LU when it amended the law to 

require that:

‘‘Not later than 30 days after the date on which funds are made available to 

the Secretary of the Interior under [section 202 of Title 23] funds shall be distributed to, and available for immediate use by, the eligible Indian Tribes, in 

accordance with the formula for distribution of funds under the Indian reservation roads program.’’

23 U.S.C 202(d)(2)(E)(i).

The reality is that the BIA does not distribute IRR Program funds within 30, 60, 

or even 90 days of receipt from the FHWA. On the one hand, the BIA claims that 

it cannot transfer the IRR Program funds until it has self-determination contracts 

or self-governance compacts in place, and on the other hand, it has dragged its feet 

in finalizing mutually acceptable model funding agreements. It cannot have it both 

ways. 

Contrary to this statute, each August, BIA Regions return tens of millions of dollars of IRR Program funds to BIA Headquarters because these funds were received 

too late in the Fiscal Year, while Tribes are practically begging for construction 

funds. Short construction seasons mean that priority road projects do not get built 

and the cost for building roads in Indian country continues to outpace funding. 

4. Simplify the Federal Grant and Contract Application and Award Process for Tribal Governments 

Why are Tribal communities lagging so far behind the Nation in reducing fatal 

traffic accidents? It is as if national campaigns to reduce traffic accidents and 

deaths end at reservation boundaries. I am afraid that resources are not reaching 

reservation communities at the rate that they should. These shortfalls in funding 

have a devastating effect on Native Americans who are dying and suffering injuries 

at unacceptable rates. 

If Indian Tribes are eligible recipients of Federal transportation funding, for the 

programs to work in Indian communities, the money must reach the intended beneficiaries. That is not the case presently. 

Part of the problem lies in the cumbersome, and wholly separate processes by 

which Indian Tribes must apply for Federal transportation, transit, and traffic safety grants administered by multiple Federal agencies (BIA, FHWA, NHTSA, FTA, 

Federal Aviation Administration (FAA), etc.) or Federal transportation grants administered through the States (Safe Routes to Schools, High Risk Rural Roads, 

Highways for Life, etc.). 

We strongly recommend that agencies within the Department of Transportation 

(Federal Lands Highway, FTA, NHTSA, and FAA) develop a simplified contract document for Tribes. This will encourage more Tribes to apply for these grants and 

bring the benefits of the Federal programs to Indian communities where they are 

most needed. Direct Federal funding of Tribes through Tribally protective and appropriate government-to-government agreements streamlines Tribal access to Federal program funds by removing artificial barriers to these grant funds by eliminating the unnecessary, costly and time consuming process of requiring Tribes to 

contract with the States for receipt of Federal transportation dollars. The Safe 

Routes to School Program and High Risk Rural Roads Program are just two examples among many of the Federal programs that should be directly available to Indian Tribes. 

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As noted above and as discussed in the 2006 report by the National Conference 

of State Legislatures, most Tribal governments lack the personnel and resources to 

administer multiple Federal grants and contracts with widely varying terms and 

conditions. Complex, conflicting grant conditions and reporting requirements hinder 

efficient Tribal administration of transportation programs and projects. The agencies should develop a single grant application process with one annual deadline as 

Congress directed the Secretary of Transportation to do for the States in applying 

for Highway Safety Program grants under SAFETEA–LU. See 23 U.S.C. § 402(m), 

as amended, sec. 2002(d) of SAFETEA–LU, 119 Stat. 1521–1522. 

Developing a simplified agreement, which takes into account the unique legal status of Tribes and respects Tribal sovereignty, will improve program performance 

and Tribal accountability. 

Under SAFETEA–LU, Congress directed the BIA to also ‘‘establish a similar simplified process for applications for grants from Indian Tribes under [Chapter 4 of 

Title 23]’’ as well. Id. To date, I am not aware of any action taken by the BIA’s Indian Highway Safety Program (IHSP) to consult with Indian Tribes, the Nation’s 

Tribal Technical Assistance Programs (TTAPs), or the IRR Program Coordinating 

Committee concerning the development of a simplified single grant application process for Highway Safety Program grants. Despite numerous invitations to the former 

Program Administrator of the BIA’s IHSP to attend an IRR Program Coordinating 

Committee meeting, no representative of that office has ever attended a Coordinating Committee meeting. This has occurred even though a number of our meetings were held in Albuquerque, New Mexico where IHSP offices are located. 

I trust that the next Program Administrator will actively consult and work with 

Indian Tribes, the TTAPs, and the Coordinating Committee to implement 

SAFETEA–LU’s mandate. 

5. Implement Model IDSA Contracts and Agreements so that Indian Tribes May 

More Easily Assume the Secretary of the Interior’s Duties for the IRR Program 

Congress recognized the need for a standardized model contract in the self-determination context in 1994 and legislated, in P.L. 103–413 (1994), the content of a 

non-construction Indian Self-Determination Act (ISDA) contract. See 25 U.S.C. 

§ 450l. This is known as the ‘‘model Section 108’’ ISDA contract. Similar model 

agreements should be developed to speed the distribution of Federal transportation 

dollars to Indian Tribes as direct recipients. 

The IRR Program Coordinating Committee and other Tribal advocates provided 

a sample Title I Indian Self-Determination contract to BIA officials in the summer 

of 2006 for use in the IRR Program. To date, the BIA has not approved a sample 

ISDA contract for Indian Tribes. Only last month did the BIA’ s Office of Self-Governance issue a proposed Title IV Self-Governance Model Indian Reservation Roads 

Addendum for use by Self-Governance Tribes. Tribes are still waiting for the Interior Department’s awarding officials and attorneys to provide a response to the Tribally proposed model Title I ISDA contract for the IRR Program. 

Interior Department attorneys have incorrectly concluded that Tribes must negotiate a separate agreement if they wish to use innovative financing techniques to 

pay for eligible IRR Program projects. This is shortsighted and legally unnecessary. 

It will hinder the use of innovative financing techniques by Tribes by raising the 

transactional costs associated with flexible financing arrangements. 

Because of the Interior Department’s intransigence on this issue, Tribes are being 

forced to use outdated, overly burdensome ISDA contracts that BIA Regional Office 

Awarding Officials are ‘‘used to’’ negotiating. These contracts do not reflect many 

of the hard won improvements to the IRR Program that Tribes negotiated with BIA 

and FHWA in the final IRR Program regulations, implemented in November 2004, 

and which Congress included in SAFETEA–LU. These improvements include Tribal 

approvals of Plans, Specifications & Estimate (PS&E) packages, full annual advance 

funding, and innovative financing techniques by which Tribal governments, if they 

choose, can leverage IRR Program funds to help finance road projects. 

The delay in the award ofIRR Program contracts hurts every Tribe’s bottom line 

and reflects poorly on the BIA’ s administration of the IRR Program. Roads are not 

being built in a timely manner and present continuing safety risks. Construction 

seasons are limited in many BIA Regions. The ideal time to bid out construction 

jobs—to lower cost—is in the middle of winter, not in the spring or summer months 

when the BIA is now releasing the majority of IRR Program funds. 

Delays in the ISDA contracting process, a process that has been in place for over 

30 years, only make transportation construction more costly. Model IRR Program 

funding agreements will help bring the BIA into compliance with SAFETEA–LU’s 

30-day payment mandate and better serve Indian country. 

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It should be a goal of the Department of Transportation and Department of the 

Interior to lower the cost of doing business in Indian country. It will allow Tribes 

to put Federal funds into the roads and bridges that can improve the quality of life 

of our communities, not waste money serving a complicated bureaucracy. This goal 

cannot be met until the BIA approves and widely distributes to the BIA Regions 

acceptable model ISDA agreements. 

6. The BIA and FHWA Must Complete a Comprehensive National Inventory of 

Transportation Facilities Eligible for Assistance Under the IRR Program 

The inventory of the Indian Reservation Roads Program is growing at a dramatic 

rate. In 2005, there were 62,319 road miles in the BlA’s RIFDS. In 2007, there are 

more than 85,000 road miles in RIFDS, an increase of more than 37 percent. BIA 

System roads, those dirt, gravel, and paved roads owned by the BIA, are only a subset of all eligible IRR Program routes. The entire IRR Program System of roads eligible for funding under the IRR Program is also comprised of routes owned by 

Tribes, States, counties, townships, and other Federal agencies. 

The IRR Program formula, by which Federal funds are apportioned among the 

Nation’s federally recognized Indian Tribes, places heavy emphasis upon road inventory miles. See 25 C.F.R. § 170.201 et seq. The integrity of the IRR Program is dependent upon accurate and complete information on each Indian Tribe’s IRR Program inventory of eligible roads. 

a) SAFETEA–LU Mandates a Comprehensive Update 

When Congress passed SAFETEA–LU in 2005, Congress directed the Secretary 

of Transportation, in cooperation with the Secretary of the Interior, to complete by 

August 10, 2007, a ‘‘comprehensive national inventory of transportation facilities 

that are eligible for assistance’’ under the IRR Program. See 23 U.S.C. 

§ 202(d)(2)(G). The comprehensive inventory update was meant by Congress to be 

more than just a ‘‘snapshot’’ of the current IRR Program inventory. It was meant 

to identify and fill in the gaps between the existing incomplete IRR Program inventory and what the inventory would include if all eligible IRR routes were included. 

Unfortunately, it is my understanding that a snapshot is all that Indian country 

and the Congress will get, unless Congress demands that the agencies conduct a 

comprehensive inventory update of the IRR Program as it so plainly directed in 

SAFETEA–LU. 

The inventory assessment is intended to assist the agencies to identify Tribal 

transportation facilities and determine the relative transportation needs among Indian Tribes. Eligible routes, at a minimum, by law include:

i) routes included in the BIA system inventory receiving funding since 1992;

ii) routes constructed or reconstructed with funds from the Highway Trust Fund 

under the IRR Program since 1983;

iii) routes owned by an Indian Tribe;

iv) community streets or bridges within the exterior boundaries of Indian reservations, Alaska Native villages, and other recognized Indian communities (including communities in former Indian reservations in Oklahoma) in which the 

majority of residents are American Indians or Alaska Natives;

v) ‘‘primary access routes’’ proposed by Tribal governments, including roads between villages, roads to landfills, roads to drinking water sources, roads to natural resources identified for economic development, and roads that provide access to intermodal termini, such as airports, harbors, or boat landings.

In addition, Congress directed in SAFETEA–LU that nothing shall preclude the 

Secretary of Transportation from including additional transportation facilities that 

are eligible for funding under the IRR Program ‘‘if such additional facilities are included in the inventory in a uniform and consistent manner nationally.’’ This has 

not occurred. 

b) The BIA and FHWA Must Exercise Leadership 

Regrettably, the IRR Program Coordinating Committee has not reached consensus, and the BIA and FHW A have not adopted, uniform guidelines on what 

routes are and are not eligible for inclusion in the IRR Program inventory for purposes of determining funding under the IRR Program formula (Tribal Transportation Allocation Methodology). How can the IRR Program Coordinating Committee, 

BIA, FHWA, or Congress accurately assess the fairness of the current formula for 

the IRR Program if the BIA and FHW A have not set clear guidelines on the types 

of routes that may be added to Tribal inventories or the process which Indian Tribes 

and BIA Regions must follow to place such routes into the RIFDS? 

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The impasse over establishing a ‘‘bright line’’ policy as to the types of routes eligible for inclusion in the IRR Program inventory, and the minimum data that Indian 

Tribes must include with every route submitted to the BIA for inclusion in their 

IRR Program inventory, has caused considerable delays, uncertainty, and frustration in the distribution of IRR Program funds. Challenges and appeals over the 

BIA’s failure to include routes in the IRR Program inventory delay the BIA’s full 

distribution of IRR Program funds, again contrary to Congress’ 30-day payment 

mandate. 

When the IRR Program Coordinating Committee cannot reach consensus on fair, 

reasonable and equitable rules for the inclusion of routes in the IRR Program inventory, it must fall to the BIA and FHWA to exercise leadership. The Coordinating 

Committee is an advisory committee to these agencies. I hope that the agencies will 

always accept the Committee’s recommendations. Ultimately, however, it is for the 

BIA and FHWA to interpret and implement the law. But they must do so in a timely manner. The IRR Program must benefit all Indian Tribes, regardless of size. 

Every Indian Tribe has transportation needs. Large Indian Tribes have large road 

inventories and require the funds to maintain them, and replace them when they 

are worn. Smaller Tribes require funds to plan, design, build, and maintain their 

priority routes. 

So long as the comprehensive update of the IRR Program, and the identification 

of eligible routes that are not yet included in the inventory, is incomplete, these additional routes are invisible to the IRR Program, to policymakers and appropriators. 

Inventory is a key component to funding and these agencies have a special obligation to Indian Tribes to identify all eligible routes and help Indian Tribes update 

their Tribal inventories. 

c) Agencies’ Report to Congress 

SAFETEA–LU requires the agencies to submit a report to Congress on the national Tribal transportation inventory not later than November 10, 2007, 90 days 

after the inventory is completed in August of this year. Mr. Chairman, we want 

what Congress mandated in SAFETEA–LU: a ‘‘comprehensive national inventory of 

transportation facilities that are eligible for assistance’’ under the IRR Program. By 

November 2007, more than 2 years after SAFETEA–LU was enacted, if all the BIA 

and FHWA report to Congress is that the IRR Program inventory is incomplete, and 

does not include all routes that are eligible under SAFETEA–LU for inclusion in the 

IRR Program inventory, the agencies will not be telling Congress or Indian Tribes 

anything new. 

We ask that this Committee direct the BIA and FWHA to provide Congress and 

the Nation’s Indian Tribes with a comprehensive review and report on the total IRR 

Program inventory of transportation facilities eligible for inclusion and funding 

under the IRR Program as directed in SAFETEA–LU. 

7. Congress Should Encourage the President to Nominate a Candidate to Fill the Position of Deputy Assistant Secretary for Tribal Government Affairs Within the 

Department of Transportation 

Tribes worked very hard during the consideration of SAFETEA–LU to develop 

consensus positions to advocate before the Administration and Congress. This Committee knows how difficult it is to legislate in the field ofIndian law and obtain a 

unified position from 564 sovereign Tribal governments. Our strategy was quite successful as is reflected in the many positive provisions contained in SAFETEA–LU. 

However, this success will not be realized if the Administration does not act on the 

legislative mandates. 

For this reason, we are disappointed that the Administration has so far failed to 

nominate anyone to fill the position of Deputy Assistant Secretary for Tribal Government Affairs, as required by SAFETEA–LU. Tribes advocated, during Congress’ 

consideration of SAFETEA–LU, for the creation of this position at the Assistant Secretarial level so that Tribal transportation issues would be more prominent before 

the Department and within the Office of the Secretary. 

As it states in SAFETEA–LU: ‘‘in accordance with Federal policies promoting Indian self determination, the Department of Transportation shall have, within the office of the Secretary a Deputy Assistant Secretary for Tribal Government Affairs appointed by the President to plan, coordinate, and implement the Department of 

Transportation policy and programs serving Indian Tribes and Tribal organizations 

and to coordinate Tribal transportation programs and activities in all offices and administrations of the Department . . . .’’ 49 U.S.C. § 102(f)(1), as amended. 

If a Deputy Assistant Secretary at DOT had been in place, perhaps the Department would have developed, in consultation with Indian Tribes, Tribal eligibility for 

the Scenic Byways program as authorized under SAFETEA–LU, and concluded that 

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Indian Tribes are eligible sub-recipients for the State-administered Safe Routes to 

School Program, without requiring the intervention of Indian Tribes and the Congress, to overturn the Department’s initial position. 

We commend FHWA Administrator Rick Capka, former Associate Administrator 

Arthur Hamilton, and Office of Transit Programs Director Mary Martha Churchman, and their staffs, for their support of and advocacy for the IRR Program, Tribal 

Transit Grants, and Tribal transportation generally. The IRR Program is a small 

component of the Federal Highway Administration’s Federal Lands Highways budget and jurisdiction. There is no substitute for an Assistant Secretary with primary 

responsibility for ensuring that all agencies within DOT coordinate their actions in 

a manner that best serves Indian country and the overall goals of the Department. 

We ask the Committee to urge the Administration to fill the Deputy Assistant 

Secretary position at DOT at the earliest possible date. This appointment will help 

achieve the goals of Congress, the Administration, and Indian Tribes to improve the 

delivery of Tribal transportation programs at all levels within the Department of 

Transportation. 

8. Increase the Number of DOT Programs Which Indian Tribes May Participate in 

as Direct Recipients 

Indian Tribes have demonstrated that they possess the capacity to deliver successful transportation programs despite the many obstacles that stand in our way. We 

are separate sovereign governments and not subdivisions of the States. While Indian Tribes may be eligible sub-recipients of some State-administered programs financed by the U.S. Department of Transportation, such as the Safe Routes to 

Schools, High Risk Rural Roads Program, and Highways for Life, Indian Tribes do 

not typically receive their fair share of these program funds. 

I hope this written testimony and the statistics that I have referenced, drive home 

to you how great the transportation needs are in Indian country. A little assistance 

will go a long way because our statistics of traffic safety accidents and fatalities are 

so high. Congress should therefore increase the number of Department of Transportation programs that Indian Tribes may apply for directly rather than as sub-recipients through the States. In many instances, the forms of State contracts are too 

cumbersome, or are simply objectionable to Tribes, requiring Tribes to waive their 

sovereign immunity from suit, or appear in State courts. The result is that Tribes 

often do not even apply for these much needed grants. 

9. Establish a Federal Lands Highways Safety Program for Indian Reservation 

Roads; Set Aside for the High Risk Rural Road Program; and Increase Funding 

for FTA’s Tribal Transit Grant Program to $50 Million Annually 

Under SAFETEA–LU, for FY 2008, Congress authorized $1.275 billion for the 

highway safety improvement program under section 148 of title 23 (High Risk Rural 

Road Program); and authorized nearly $700 million under Title II of SAFETEA–LU 

for the Highway Safety Programs of chapter 4 of title 23. These funds include: for 

highway safety programs ($225 million); highway safety research and development 

($107 million); occupant protection incentive grants ($25 million); safety belt performance grants ($124.5 million); State traffic safety information system improvements ($34.5 million); alcohol-impaired driving countermeasures incentive ($131 

million); national driver register ($4 million); high visibility enforcement program 

($29 million); motorcyclist safety ($6 million); and child safety and child booster seat 

safety incentive grants ($6 million). 

SAFETEA–LU amended section 402(c) of title 23 to increase the set aside of appropriations for Highway Safety Programs to the Secretary of the Interior from percent of 1 percent to 2 percent annually, but this increase still provides less than 

$5 million dollars to be divided among all 564 federally recognized Tribes. 

We must build on this success and establish an Indian Reservation Roads Safety 

Program for the Federal Lands Highways office within the Department of Transportation. In 2004 and 2005, Indian Tribes sought to establish a set aside for the IRR 

Program for the High Risk Rural Road Program during the Congress’ consideration 

of SAFETEA–LU as well as a Federal Lands Highways safety program funded at 

$40 million annually. We currently recommend that Congress create a 2 percent set 

aside for the IRR Program for the High Risk Rural Roads Program, and create a 

Highway Safety Program for Indian reservation roads within the Federal Lands 

Highways with an appropriation amount of $50 million annually to dramatically reduce the incidence of death and injury on America’s Indian reservation roads. 

If Congress develops Tribal set asides for Department of Transportation safety 

programs, it would do so much to combat behavioral and safety issues that contribute to the high rates of death and injury on Indian reservation roads. 

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The Tribal Transit Program is a huge success and demonstrates the unmet need 

for more transit funding of Tribal transit programs. Our Reservation operates a 

transit program and it benefits so many of our members, including students attending Sitting Bull College. As noted above, nearly 100 Tribes submitted applications 

to FTA in the first year FTA announced the program. FTA was able to fund over 

60 of the applicants. Due to the demonstrated high demand and proven results, 

Congress should increase the authorization for the Tribal Transit Grant Program 

to $50 million annually. 

10. Increase Funding to the Successful Tribal Transportation Assistance Programs 

(TTAPs) to at Least $2.5 Million Annually to Increase Awareness in Indian 

Country of ‘‘Best Practices’’ in Transportation Planning, Design, Construction, 

Maintenance, and Highway Safety Measures 

Tribal Technical Assistance Programs (TTAPs) are the real unsung heroes in Tribal transportation policy. They work to educate Tribal officials on transportation 

issues, increase the technical capacity of Tribal governments in the transportation 

arena, and provide training in safety and equipment operation and maintenance. As 

a result of their efforts, Tribal governments are playing a greater, and more informed, role in the delivery of transportation services to their communities. 

The TTAPs are 15 years old, having been created in the Intermodal Surface 

Transportation Efficiency Act of 1991 (ISTEA) and is funded in part through 

FHWA’s Office of Professional and Corporate Development (OPCD), and with IRR 

Program funds. Seven TTAPs assist Tribes throughout the country. Under 

SAFTEA–LV, the BIA is authorized to fund the TTAPs at $1.0 million annually. I 

recommend that Congress increase funding to the TTAPs to $2.5 million annually 

so that they may expand their valuable services to Indian Tribes. 

11. Promote the Use of Flexible Financing Arrangements in Standard ISDA Contracts and Agreements 

Flexible financing or advance construction agreements allow Tribes to use a portion of their IRR Program funds to repay government bonds or commercial lenders 

the interest and principal for loans advanced to the Tribe to finance an IRR Program-eligible project. To be eligible, the project must be included on an FHWA-approved Transportation Improvement Program (TIP). Innovative financing is different than pay-as-you-go (paygo) arrangements in that an entire construction 

project may be bid out as a single project which creates economies of scale, reduces 

mobilization costs, and minimizes the negative effects that construction inflation 

would otherwise have on available funds that are saved by the Tribe over time. 

We are disappointed that the Assistant Secretary—Indian Affairs informed the 

IRR Program Coordinating Committee in April 2007 that the BIA will not recognize 

advance construction authority through straight-forward Indian Self-Determination 

Act (ISDA) contracts and Self-Governance agreements. Instead, the BIA will only 

enter into an advance construction arrangement with a Tribe through negotiation 

of a separate agreement, under authority of 23 U.S.C. § 204, which is not included 

in or referenced by the ISDA contract or agreement. 

The Assistant Secretary’s letter does not explain the BIA’s rationale as to why the 

ISDA contract, the contract document which Tribal governments are most familiar 

with and accustomed to negotiating with the BIA for over 30 years, is not an acceptable agreement for the use of flexible financing arrangements by Tribes. 

The BIA’s decision will likely result in fewer Tribes using advance construction 

agreements in the future to finance eligible road construction projects. This decision 

will also make it harder for Tribes to obtain short term bridge loans to complete 

projects at the end of a fiscal year. This will mean unnecessary project closures and 

costly demobilizations and remobilizations. To mandate that Indian Tribes must negotiate a separate advance construction agreement is not sensible and raises the 

cost of doing business in Indian country. As the Assistant Secretary concedes in his 

letter, the ‘‘Federal Government does not act as a surety, guarantor, or project financier or request approval of a loan from any lending institution’’ under these agreements, so there is no reason to require the Tribes to enter into a separate entirely 

superfluous agreement, when the Self-Determination agreement can serve this same 

purpose. 

By contrast, FHWA, in negotiating its IRR Program Agreement with five Indian 

Tribes in 2006, allowed the IRR Program Agreement to reference the IRR Program 

regulations’ flexible financing provisions (25 C.F.R. 170.300 et seq.), and permit the 

Tribes, at their option, to direct a portion of their IRR Program funds to be paid 

from FHWA directly to the bond trustee or lending institution financing an eligible 

project under the IRR Program. This more sensible approach lowers transaction 

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costs and provides incentives to lenders to do business with Tribal governments on 

transportation projects. 

We encourage the Committee to either counsel the Department of the Interior to 

retract its unwarranted decision or clarify in future legislation that advance construction agreements may be included in the standard Title I ISDA contract and 

Title IV Self-Governance agreement. 

12. Implement Right-of-Way Reform in Indian Country to Facilitate Reconstruction 

of Existing Roads and the Design and Construction of New Roads 

Reservation areas are often a checkerboard of fee, allotted, and Tribal trust lands. 

Therefore, it is often time-consuming and expensive for Tribes and the Federal Government to obtain all of the necessary and appropriate rights-of-way before beginning construction or renovation of roadways, bridges, and other transportation infrastructure. 

The BIA is responsible for maintaining records of rights-of-way in Indian Country. 

Unfortunately, BIA right-of-way records management is in a terrible state. IRR 

projects are often delayed by months—or even years—because the BIA realty officers cannot locate valid right-of-way records. Tribes are using their IRR Program 

funds, the only funds the BIA claims are available, to cure inaccurate or lost rightsof-way. Tribal and Federal funds are thus often wasted in re-acquiring valid rightsof-way simply because adequate BIA records have not been kept. 

The Interior Department should undertake a major new initiative to organize, update, and computerize its BIA right-of-way records. It should make these records 

available to Tribal governments in an easy-to-access format such as a GIS/GPS 

mapping system. The Interior Department should also be more aware and protective 

of Tribal jurisdictional interests in the right-of-way acquisition and transfer process, 

in light of the U.S. Supreme Court’s adverse right-of-way ruling in Strate v. A-1 

Contractors, 520 U.S. 438 (1997) and subsequent cases. 

The Federal Government should also work closely with Tribes to implement a 

proactive program of ‘‘corridor management.’’ Through ‘‘corridor management,’’ Tribally preferred corridors for transportation and other infrastructural elements—such 

as for electrical lines, water lines, and others—can be planned well in advance. In 

some instances, the easements for these corridors may be obtained in advance. Corridor management requires Tribal governments to think proactively about how they 

envision future development to occur on their reservations. Through corridor management, rights-of-way for all inter-related infrastructural development projects can 

be obtained in a unified manner, speeding up design and construction once a specific 

project is authorized and funded. 

The Federal Government should be an active and supportive partner in providing 

technical assistance to Tribes who wish to apply the principles of corridor management to their transportation programs and to general reservation development. 

VI. Conclusion 

Indian Tribes are coming into their own in the transportation field. Tribal governments are focusing on long-range transportation planning, assuming the Interior 

Department’s duties for the IRR Program, partnering with States and county governments on mutually beneficial construction projects, and looking at innovative 

ways to finance the development of infrastructure on their reservations. These 

trends should be applauded and I wish to thank the Members of this Committee 

for the many beneficial legislative changes that you worked to include in 

SAFETEA–LU. Yet even with these successes, many challenges still remain. Congress and the Administration must recognize that if Indian Tribes are to overcome 

these challenges, Tribal governments must be given the resources to succeed. 

I hope that as a result of this hearing Tribal governments, Tribal Technical Assistance Programs (TTAPs), ITA and State DOTs, can work in greater concert with 

the BIA and Department of Transportation to improve transportation infrastructure 

in Indian country—from building and enhancing Tribal transportation departments 

to building and maintaining safer roads in Indian country. 

Tribal communities will not suffer the traffic fatalities and injuries at the rates 

we are now seeing if we can interact on a more equal footing with States, to plan, 

design, build and maintain our inventory of roads, and implement traffic safety 

measures which States have shown to be successful in promoting highway safety. 

Pockets of best practices exist within the agencies which demonstrate that the manner by which Indian Tribes receive Federal funds and operate Federal transportation can be improved for the better. Tribes need the help of Congress to makes 

these best practices the rule, rather than the exception. 

Tribal governments, Federal agencies, and Congress need to open a new dialogue 

where old habits and old ways of doing business are discarded for more efficient 

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practices. We are making progress in Tribal transportation and I encourage this 

Committee and the Congress to work in partnership with Indian Tribal governments. Indian Tribes are ready to do our share to improve the safety of our communities for ourselves and our children’s future. 

Thank you for giving me the opportunity to provide this written testimony regarding Tribal transportation issues on behalf of the Intertribal Transportation Association. 

PREPARED STATEMENT OF THE BOARD OF SUPERVISORS, NAVAJO COUNTY, ARIZONA

The Board of Supervisors of Navajo County, Arizona thank Chairman Dorgan, 

Acting Vice Chair Murkowski, and the esteemed Members of this Committee, including Arizona’s own Senator John McCain, for this opportunity to provide a different kind of local perspective—a County perspective—on transportation issues in 

Indian Country. Specifically, we wish to raise to this Committee’s attention the crucial yet often overlooked issue of the maintenance of Indian Reservation Roads. As 

a local jurisdiction whose boundaries include large portions of the White Mountain 

Apache, Hopi and Navajo reservations, Navajo County is committed to assuring that 

county residents who happen also to be tribal members living on their reservations 

have all weather access to all of the roads within our County, whether on reservation or off. 

Background 

Too often, counties are overlooked in discussions about Federal policies in Indian 

Country because so much attention is given to the Federal and state governmentto-government relations with tribes. The fact is, counties are very often the local 

government with whom tribes share members/residents and infrastructure. For example, when the dirt roads on the reservations wash out due to bad weather, which 

happens several times each year, Navajo County is asked to bring its own equipment and personnel to make repairs to Indian Reservation Roads (IRR) so that our 

county residents do not remain stranded while they wait for the Bureau of Indian 

Affairs (BIA) to show up. 

Today, most of the roads on the Indian reservations in Navajo County are still 

entirely unpaved, looking pretty much like they did before there were automobiles. 

Under normal circumstances, these roads are difficult to pass due to poor or nonexistent road maintenance. During seasonal weather events—including rain, snow, 

mud and sand storms—these roads become protracted public health, safety and education emergencies because BIA does not have the apparent ability to provide either 

regular or emergency maintenance. 

Ironically, most of the off-reservation roads within our county are also dirt, yet 

provide all weather access because we maintain them. Our county government could 

never get away with providing the kind of inadequate service to its residents that 

BIA subjects reservation residents. It is our position that the people who live on the 

reservations within Navajo County are county residents to whom we are obligated 

to provide public access. For this reason, we not only are often the first responders 

to help people trapped by washed out BIA roads, but also are subsidizing the Navajo 

Area Office with cash, equipment, material and personnel, to the tune of at least 

$3.5 million over the last 3 years. 

The Problem With Road Maintenance Policy 

BIA prioritizes maintenance of paved roads over maintenance of unimproved 

roads to protect the Federal investment in the IRR program. This perspective makes 

sense to a Federal agency accountable to the Government Performance and Results 

Act. The problem is that in the context of Indian Country, where few of the roads 

are paved, this makes no sense at all and renders BIA totally unaccountable to the 

very people it is mandated to serve. 

Moreover, BIA’s definition of road maintenance precludes improvement of dirt 

roads and prohibits making them all weather access. Section 170.4 of the IRR Rule 

defines maintenance as, ‘‘preservation of the entire highway, including surface, 

shoulders, roadsides, structures and such traffic control devices as are necessary for 

the safe and efficient utilization of the highway.’’ Section 170.808 prohibits the improvement of the surface condition of any road. 

As a practical matter, from the perspective of those who use them, all roads are 

local, which is why the Federal agency’s maintenance priorities should reflect local 

priorities. In Navajo County, whether on or off the reservation, the highest local priority is maintenance of school bus routes. Congress has already acknowledged the 

import of providing all weather access to federally funded schools by withholding 

funds from a state that does not maintain federally funded highways (Title 23, SecVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00124 Fmt 6601 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF
121

tion 116). We respectfully wonder why Congress does not hold BIA to this same 

standard. 

Local Solutions 

The Navajo Nation Department of Transportation (NDOT) is leading an exciting 

effort to bring road maintenance into the 21st century and Navajo County is proud 

to be a part of this initiative. In 2006, NDOT convened a working group of road engineers from every jurisdiction within the exterior borders of Navajo and Hopi—including BIA, the State of Arizona, multiple counties and the Navajo and Hopi 

tribes—to promulgate new guidelines for the maintenance of unimproved IRR roads. 

The result is the ‘‘Navajo Nation Road Standards and Engineering Specifications for 

Earth/Dirt and Gravel Roads.’’ This locally generated road engineering standard for 

maintenance (which will soon be codified into Navajo law) preserves the Federal 

floor of all applicable statutes and regulations (i.e. NEPA, Clean Water Act, Endangered Species, etc.) while constructing a regulatory scheme that makes sense for 

local conditions. 

There are two key differences between these new, locally generated maintenance 

guidelines, and BIA policy. First, the definition of road maintenance is broadened 

to allow improvement for all weather access, meaning that rather than only allowing IRR roads to be bladed, maintenance crews would also be allowed to add gravel 

and create drainage. Currently, maintenance of IRR dirt roads is limited to annual 

or semiannual blading, which only lasts for hours or days and ultimately creates 

a surface that acts like a trench and fills up with, rather than drains, water. Second, the ‘‘Navajo Nation Road Standards and Engineering Specifications for Earth/

Dirt and Gravel Roads’’ prioritizes school bus routes before any other kind of road 

because our communities value our children’s education above all else. 

The Dependable Indian Rural Transportation (DIRT) Project is a road maintenance partnership between the Navajo Nation and Navajo County to improve the 

all weather accessibility of unpaved roads through implementation of the Navajo 

Nation Road Standards and Engineering Specifications for Earth/Dirt and Gravel 

Roads. This partnership recognizes how mutual tribal and county participation in 

transportation projects of shared interests will benefit our common purpose to protect public health, safety and welfare of our tribal and county residents. 

Through the DIRT Project, Navajo County will provide unimproved road maintenance training and technical assistance to the Navajo Nation in order to help Navajo assume responsibility for their own transportation function from the BIA. Tribes 

already maintain discretion to allow other jurisdiction’s to supersede BIA’s administration of road programs (IRR Rule Section 170.4 (d)). Toward this end, both the 

Navajo Nation and Navajo County are poised to commit $7.5 million over the next 

5 years for this effort. However, in order to tackle this situation across the reservation, the DIRT Project will need $27 million over the next 5 years. 

Navajo County and NDOT hope the DIRT Project can serve as a national model 

for using local partnerships and expertise to finally make IRR maintenance a reality 

for the vast majority of tribes whose transportation infrastructures do not consist 

of paved roads. The innovation the DIRT Project has to offer is its locally driven 

two prong approach that creates (1) a Tribal and County Road Maintenance Partnership and (2) Local Road Maintenance Standards and Priorities. Navajo County 

urges Congress to authorize the DIRT Project as a pilot project for export throughout Indian Country through the next reauthorization of the Federal highway bill 

(SAFETEA–LU reauthorization). 

Conclusion 

While it is no secret that the BIA has little funding for road maintenance within 

its budget, the real issue is not money but policy, and that is a problem this Committee can begin addressing immediately. Navajo County invites this Committee to 

visit the DIRT Project to better understand the daily struggle that BIA’s road maintenance creates for anyone traveling on IRR roads, the majority of which on the IRR 

inventory are dirt. By helping to change BIA’s current policy, this Committee can 

give the American taxpayer the biggest bang for their buck by making most roads 

in Indian County safe and accessible. 

PREPARED STATEMENT OF JOHANNA DYBDAHL, CHAIRPERSON, SOUTHEAST TRIBAL

DEPARTMENT OF TRANSPORTATION COMMISSION

Before I move into my testimony I want to express my condolences and those of 

the Southeast Tribal Department of Transportation to the family and friends of Senator Craig Thomas, and to this Committee. My own sister is stricken with cancer 

and sadly for my family has elected to cease treatment. 

122

Thank you for the opportunity to provide written testimony on the IRR Program. 

The Southeast Tribal Department of Transportation (SE TDOT) is a consortium of 

7 tribes from southeast Alaska that have joined together under the Central Council 

Tlingit & Haida Indian Tribes of Alaska’s Compact with the Assistant Secretary of 

Indian Affairs. We have done this to: economize on the costs associated with operation of a tribal transportation program; develop expertise in the Indian Reservation 

Roads (IRR) Program; access other transportation programs available to tribal governments; and to work cooperatively with the State and local governments on 

projects of mutual priority. 

We have benefited from the changes to the IRR Program throughout the years 

both legislative and through the negotiated regulations (25 CFR 170 IRR Program 

Regulations). The ability to assume the IRR Program and manage it directly is perhaps the greatest benefit for us. Not only does it give us direct access to our IRR 

funds, but it allows us to manage our funds in a manner that benefits the whole 

community as well as providing employment to tribal members. In the past we had 

little or no access to Interiors BIA Road Maintenance funds, so the changes to Title 

23 United States Code authorized by the Safe, Accountable, Flexible, Efficient 

Transportation Equity Act: A Legacy for Users (SAFETEA–LU) that allow us to use 

up to 25 percent of our IRR funds for transportation facilities maintenance is another significant benefit. We have seen an increase in IRR Program funding to some 

of our members through updates of their IRR Inventories. 

We strongly support:

1. The continuation of and increases in funding to the Indian Reservations 

Roads Program.

2. The continuation of the BIA Road Maintenance Program and recommend that 

it be funded at a level that provides for an appropriate level of funding to support viable preventive maintenance and needed snow removal. And we urge 

that it be funded to address the needs for transportation facility maintenance 

for all tribes, not just those that have roads owned by the BIA.

3. An increase to the Federal fuel tax to allow for needed increases in the Highway Trust Fund.

4. A scientific evaluation of the impact of roadway and airstrip dust on heath 

and subsistence activities. As well as studies that determine the methods of 

dust control that provide the greatest benefits with the least impact to the environment.

5. Filling the position of Deputy Assistant Secretary for Tribal Government Affairs identified within SAFETEA–LU.

6. Expansion of ferry services within Alaska. We have seen a decrease in the 

number of ferries and not only support increasing the existing service, but recommend expansion to provide services to other villages and communities around 

Alaska.

7. Continuation of and Increases in funding to the Federal Transit Administration’s Tribal Transit Program authorized by SAFEATEA–LU.

8. Continuation of and increases in Tribal Transportation Assistance Programs 

(TTAPs). We also encourage Congress to provide Congressional Direction that 

requires appropriate tribal consultation and preferable participation when 

TTAPs are selected.

9. Expand direct participation by Tribes and the U.S. Department of Transportation, so that Tribes may participate directly with the U.S. DOT and its administrations and not be subject to working through their respective State governments.

10. Authorize and fund a Highway Safety Program to address safety issues on 

transportation facilities identified within the National Tribal Transportation Inventory identified within SAFETEA–LU.

11. Giving the Department of Interior Congressional Direction that allows for 

innovative financing techniques in Indian Self-Determination Contracts and 

Self-Governance Compacts.

12. Modification to statutory language and providing Congressional direction on 

statutes that have been used to prevent reasonable progress and construction 

within Indian Country. Laws that impact the acquisition of transportation facility rights-of-ways, environmental and archaeological approvals. Too often important tribal projects that impact health and safety of tribal members have been 

held hostage to individuals following the letter of the law rather than the intent, and the influence of outside interest groups that have little regard for the 

human needs of the tribes and their members.

123

There are two issues that have been particularly problematic to us and we believe 

the other tribes within Alaska, as well as we the tribes across the country. 

A. Indian Reservation Roads Program Inventory 

We believe that the current IRR Inventory, the Inventory used to generate the 

Relative Need Distribution Formula is riddled with errors. Data regarding the conditions of transportation facilities is incorrect, and in many cases data regarding the 

ownership of transportation facilities is in error. In addition, we believe there have 

been data submission errors through either coding errors or difficulty in understanding the coding guidelines. For instance roads that fall under the jurisdiction 

of other governments may be generating funding outside of the respective State’s 

local match requirements as required by the IRR Program Regulations. Additionally, the Bureau of Indian Affairs has instituted policies that are outside of either 

Statute or Regulation that has caused the process for updating IRR Inventories to 

be excessively cumbersome and costly. 

The IRR Inventory is meant to identify 80 percent of the transportation need of 

the tribes; the other 20 percent is based on tribal population. Though we believe 

the funding formula could be used with an accurate and fair inventory for this purpose, we have strong reservations regarding the accuracy of the data in the current 

Inventory, and while many tribes have updated their IRR Inventories, there continues to be a significant number of tribes across the country that have not yet had 

their IRR Inventories updated either through non-action by the Tribe or difficulty 

in having their submission accepted. 

The IRR Program is meant to be jointly administered by the Bureau of Indian 

Affairs (BIA) and the Federal Highway Administration (FHWA). SAFETEA–LU 

gave significant authority to the FHWA on the IRR Inventory, but we have seen 

a total lack of commitment on the part of FHWA to step up and help address the 

problems identified above. Congress gave direction in SAFETEA–LU on what is to 

be included in the IRR Inventory. To date, we have observed no action on this Congressional direction. 

B. Tribal Technical Assistance Program 

An issue of grave importance to the tribes within Alaska is the selection process 

used by FHWA to select our Tribal Technical Assistance Program (TTAP). We had 

benefited greatly from the previous 5-year cooperative agreement between the 

FHWA and the Eastern Washington University (EWU). The Process for selection 

was spelled out in the IRR Program Regulations. We believe the FHWA made no 

effort to consult with the tribes, had no tribal participation in the selection process, 

and in many ways acted with bias in their process. A large number of Alaska Tribes 

were very happy with the work of the AK TTAP under the operation of the EWU. 

We were stunned when we learned that the award of the current 5-year cooperative 

agreement was given to the University of Alaska—Fairbanks. We reviewed the 

FHWA’s selection criteria and could find no justification for the selection. We consider this action by FHWA a harmful action toward the tribes within Alaska. We 

have learned that FHWA had issues with the high level of tribal advocacy provided 

by EWU, and that they had no intent of awarding a cooperative agreement to them. 

We believe that had FHWA advised the tribes in Alaska of their concerns as part 

of a consultation, AK tribes and tribal organizations would have applied in response 

to the solicitation. As IRR Program funds are used to fund a portion of the TTAP 

we believe there was a complete and utter failure on the part of FHWA to follow 

their own policies on tribal consultation. 

Regardless of our concerns with the IRR Program, it is a very good government 

program. One that needs to continue as it is of great benefit to the tribes. This past 

year my Tribe, the Hoonah Indian Association, was able to use its IRR funds to 

working cooperatively with the city of Hoonah to complete a city street paving 

project. Though we didn’t generate very many dollars, the SE TDOT was able to 

use our FY 2005 and FY 2006 funds to enter into a cooperative agreement with the 

City. This made it possible for the City to complete the project as originally planned. 

Thank you for providing this opportunity for tribes to weigh in and testify on tribal transportation issues. 

STANDING ROCK SIOUX TRIBE

Fort Yates, ND, July 26, 2007

Hon. BYRON L. DORGAN,

Chairman, 

Senate Committee on Indian Affairs, 

Washington, DC.

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Dear Chairman Dorgan:

I want to thank you for convening the Senate Committee on Indian Affairs on 

July 12, 2007, to conduct an oversight hearing on transportation issues in Indian 

country and for inviting Standing Rock Sioux Tribe Transportation Director Pete 

Red Tomahawk to testify concerning the state of transportation on Indian reservation roads. From every indication, the attention your hearing has brought to the deplorable state of Indian reservation roads and bridges—and the threat to public 

safety that such transportation systems pose to the traveling public—highlights the 

need for increased resources for rural road safety, road construction, and road maintenance on America’s Indian reservation roads. Thank you for serving the Standing 

Rock Sioux Tribe and Indian country so well. 

I am also writing you to request that a South Dakota Department of Transportation report which Mr. Red Tomahawk referenced in his written testimony to the 

Committee be included in full in the official record of the July 12, 2007 oversight 

hearing. The report, entitled: ‘‘Improving Motor Vehicle Crash Reporting on Nine 

South Dakota Indian Reservations,’’ Study SD2005–14, Final Report, May 2007, prepared by ICF International, Inc., details the lack of consistent crash report data, the 

barriers to better crash reporting on tribal lands, and suggested remedies to ensure 

that improvements are made to the gathering of motor vehicle accident reporting 

in Indian country. I enclose a copy of the SD DOT Final Report with this letter. 

It is our view that the SD DOT study and recommendation made in the report 

have broad application throughout Indian country. Improving the ability of Indian 

tribes to accurately document motor vehicle accidents, identify accident-prone roads, 

make safety repairs where possible, and ensure that the BIA maintains a central 

repository of Indian reservation road crash statistics, will improve road safety in Indian country. 

Thank you again for shedding light on this often neglected subject. I look forward 

to working with you and your staff to build on the success of the Committee’s oversight hearing and make meaningful improvements to the safety of Indian reservation roads. 

Sincerely, 

RON HIS HORSE IS THUNDER, 

Chairman.

cc: The Honorable Tim Johnson; The Honorable John Thune; The Honorable 

Stephanie Herseth; Tribal Council; Mr. Pete Red Tomahawk; and Mr. David 

Huft. 

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* Responses to written questions were not available at the time this hearing went to press. 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO JOHN R. BAXTER * 

Deputy Assistant Secretary for Tribal Government Affairs 

Question 1. If the Department of Transportation has not filled the position of Deputy Assistant Secretary for Tribal Government Affairs, how does the Department coVerDate 0ct 09 2002 14:43 Jan 31, 2008 Jkt 037860 PO 00000 Frm 00210 Fmt 6601 Sfmt 6621 S:\DOCS\37860.TXT JACK PsN: JACKF

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ordinate tribal concerns among the various agencies and offices? Where is the Department in filling this position that has been vacant for nearly two years? 

Comprehensive National Tribal Transportation Facility Inventory 

SAFETEA–LU requires that by August 10, 2007, the Secretary of Transportation 

and the Secretary of the Interior must complete a ‘‘comprehensive national inventory of transportation facilities that are eligible for assistance under the Indian reservation roads program.’’

SAFETEA–LU lists some of the transportation facilities that are eligible for assistance under the IRR Program. 

Question 2. Does the Departments’ comprehensive national tribal transportation 

facility inventory include all roads and bridges that are eligible for inclusion in the 

inventory?

Question 3. Does the inventory reflect Tribal transit systems?

Question 4. Are the procedures to include eligible routes in the IRR Program inventory employed uniformly across the country in each of the 12 BIA Regions?

Question 5. What improvements do you suggest to the inventory update process?

Question 6. What is the average amount of time required to update a Tribe’s road 

inventory from the time the route is submitted by a Tribe to the time the facility 

is actually included on the inventory?

Question 7. What is the average amount of time for the BIA and FHWA to implement recommendations of the IRR Program Coordinating Committee from the time 

a recommendation is made by that advisory body to the time the Departments implements the recommendation as agency policy for the IRR Program? 

Road Maintenance 

The motor vehicle fatality and injury statistics in Indian country are appalling 

and unacceptable with death rates twice and in some times three-times the national 

average. 

Question 8. What role does road maintenance play in transportation safety in Indian country?

Question 9. What is the current deferred Road Maintenance backlog amount for 

BIA and Tribally-owned routes?

Question 10. Is the Department of Transportation satisfied that the BIA is requesting sufficient funds to properly maintain IRR Program facilities? If it is not 

satisfied, what does the Department plan to do about it?

Question 11. Are traffic accidents underreported in Indian Country?

Question 12. Is there a uniform process by which the Department of the Interior 

and the Department of Transportation collect traffic accident data on Indian reservations and share that data with Tribes, States, and one another?

Question 13. What affect does the present funding level for the BIA Road Maintenance Program have on the useful life of roads and bridges built and reconstructed 

with IRR Program funds?

Question 14. Why did the Indian Highway Safety Office not publish a notice of 

grant availability for FY 2007 with respect to the two percent of Highway Safety 

funds set aside under SAFETEA–LU for the Department of the Interior to award 

to Tribes to carry out highway safety programs? How did the Department expend 

these funds?

Question 15. What is the cost to update BIA-owned and Tribally-owned Road 

Maintenance equipment that is purchased or maintained with BIA Road Maintenance Program funds?

Question 16. What action has the Department of Transportation taken to ensure 

that State and local governments build and reconstruct State- and county-owned 

routes that are located on or provide access to Indian reservations?

Question 17. What is the long term impact to the IRR Program authorizing Tribes 

to use 25 percent of road construction funds to address road maintenance needs that 

the BIA Road Maintenance Program cannot remedy? 

Funding Level for the IRR Program 

According to the National Highway Traffic Safety Administration (NHTSA), the 

motor vehicle death rate for Native Americans is twice, and in some cases, three 

times the national average with motor vehicle injuries the leading cause of death 

for Native Americans aged 1–34. 

Based on the pre-existing unmet need for construction of roads and bridges in Indian country, Congress, in SAFETEA–LU, increased funding for the IRR Program 

208

* Responses to written questions were not available at the time this hearing went to press. 

from $275 million per year under TEA–21 to $300 million, rising to $450 million 

by FY 2009. 

Question 18. Are the resources available to the Departments adequate to address 

transportation infrastructure needs in Indian country and reduce traffic fatalities 

and injuries among Native Americans?

Question 19. How would you characterize the overall state of roads and bridges 

in Indian country?

Question 20. Has the backlog of unmet construction need for IRR Program roads 

and bridges gone down since SAFETEA–LU was enacted?

Question 21. Are the present funding levels authorized under SAFETEA–LU for 

the IRR Program and IRR Bridge Program keeping pace with construction inflation 

and satisfying the need for transportation infrastructure in Indian country?

Question 22. Is the IRR Program subsidizing deferred road maintenance needs for 

IRR Program routes that cannot be paid for with BIA Road Maintenance funds 

alone?

Question 23. What is the Departments’ estimate of the cost to remedy the unmet 

need for construction of transportation system roads and bridges in Indian country? 

Timely Approval of Tribal Transportation Improvement Programs 

In order to ensure that federal highway funds are spent only for IRR projects that 

have been approved by the BIA and the FHWA, the IRR Program regulations require each Tribe to prepare a Tribal Transportation Improvement Program (TTIP) 

which must be approved first by the BIA, and then by the FHWA and ultimately 

included on the IRR Transportation Improvement Program (IRRTIP). Under the 

regulations, Tribes may only expend funds for projects that are included on the 

FHWA-approved IRRTIP. 25 C.F.R. § 170.116(e). Tribes have expressed frustration 

that the BIA takes an inordinately long time to approve and update Tribal TIPs and 

to submit them to the FHWA for inclusion on the IRRTIP. As a result Tribes with 

self-determination contracts often cannot expend their IRR Program funds, because 

their projects have not been included on the IRRTIP. In one BIA Region for example, in FY 2006 the BIA only approved the TIPS of approximately 10 percent of 

Tribes with ISDA contracts with the result that the remaining Tribes have been unable to expend their IRR Program funds. 

Question 24. How long does it take on average for the BIA and FHWA to approve 

and include a Tribal Transportation Improvement Program in the IRR Program-TIP 

after the Tribe has submitted it to the agency?

Question 25. What mechanisms has your Agency adopted or proposed to speed 

this process?

Question 26. Do the BIA and FHWA permit Tribes to submit TTIPs via the internet and to track progress of the TTIP approval process on-line? 

WRITTEN QUESTIONS SUBMITTED BY HON. BYRON L. DORGAN TO JERRY GIDNER * 

Comprehensive National Tribal Transportation Facility Inventory 

SAFETEA–LU requires that by August 10, 2007, the Secretary of Transportation 

and the Secretary of the Interior must complete a ‘‘comprehensive national inventory of transportation facilities that are eligible for assistance under the Indian reservation roads program.’’

SAFETEA–LU lists some of the transportation facilities that are eligible for assistance under the IRR Program. 

Question 1. Does the Departments’ comprehensive national tribal transportation 

facility inventory include all roads and bridges that are eligible for inclusion in the 

inventory?

Question 2. Does the inventory reflect Tribal transit systems?

Question 3. Are the procedures to include eligible routes in the IRR Program inventory employed uniformly across the country in each of the 12 BIA Regions?

Question 4. What improvements do you suggest to the inventory update process?

Question 5. What is the average amount of time required to update a Tribe’s road 

inventory from the time the route is submitted by a Tribe to the time the facility 

is actually included on the inventory? Provide the written instructions and guidelines provided by the BIA to Indian Tribes to implement an inventory update submittal.

209

Question 6. What is the average amount of time for the BIA and FHWA to implement recommendations of the IRR Program Coordinating Committee from the time 

a recommendation is made by that advisory body to the time the Departments implements the recommendation as agency policy for the IRR Program? 

Road Maintenance 

The motor vehicle fatality and injury statistics in Indian country are appalling 

and unacceptable with death rates twice and in some times three-times the national 

average. 

Question 7. What role does road maintenance play in transportation safety in Indian country?

Question 8. What is the current deferred Road Maintenance backlog amount for 

BIA and Tribally-owned routes?

Question 9. Are traffic accidents underreported in Indian Country?

Question 10. Is there a uniform process by which the Department of the Interior 

and the Department of Transportation collect traffic accident data on Indian reservations and share that data with Tribes, States, and one another?

Question 11. What affect does the present funding level for the BIA Road Maintenance Program have on the useful life of roads and bridges built and reconstructed 

with IRR Program funds?

Question 12. Has the BIA Indian Highway Safety Office developed a simplified 

process for Tribes to apply for traffic safety grants as required under SAFETEA–

LU?

Question 13. Why did the Indian Highway Safety Office not publish a notice of 

grant availability for FY 2007 with respect to the two percent of Highway Safety 

funds set aside under SAFETEA–LU for the Department of the Interior to award 

to Tribes to carry out highway safety programs? How did the Department expend 

these funds?

Question 14. What is the cost to update BIA-owned and Tribally-owned Road 

Maintenance equipment that is purchased or maintained with BIA Road Maintenance Program funds?

Question 15. What amount of funding does the BIA estimate that it needs annually to maintain IRR Program facilities owned by the BIA and Indian tribes and 

currently reflected in the IRR Program inventory?

Question 16. What is the rationale for cutting the BIA Road Maintenance Program budget at a time when the IRR Program inventory is growing?

Question 17. The 2004 Program Assessment Rating Tool (PART) evaluation of the 

BIA Road Maintenance System indicated that the program results were not demonstrated. What actions has the BIA taken since 2004 to produce and demonstrate 

results for the BIA Road Maintenance Program?

Question 18. What is the long term impact to the IRR Program authorizing Tribes 

to use 25 percent of road construction funds to address road maintenance needs that 

the BIA Road Maintenance Program cannot remedy? 

Funding Level for the IRR Program 

According to the National Highway Traffic Safety Administration (NHTSA), the 

motor vehicle death rate for Native Americans is twice, and in some cases, three 

times the national average with motor vehicle injuries the leading cause of death 

for Native Americans aged 1–34. 

Based on the pre-existing unmet need for construction of roads and bridges in Indian country, Congress, in SAFETEA–LU, increased funding for the IRR Program 

from $275 million per year under TEA–21 to $300 million, rising to $450 million 

by FY 2009. 

Question 19. Are the resources available to the Departments adequate to address 

transportation infrastructure needs in Indian country and reduce traffic fatalities 

and injuries among Native Americans?

Question 20. How would you characterize the overall state of roads and bridges 

in Indian country?

Question 21. Has the backlog of unmet construction need for IRR Program roads 

and bridges gone down since SAFETEA–LU was enacted?

Question 22. Are the present funding levels authorized under SAFETEA–LU for 

the IRR Program and IRR Bridge Program keeping pace with construction inflation 

and satisfying the need for transportation infrastructure in Indian country?

210

Question 23. Is the IRR Program subsidizing deferred road maintenance needs for 

IRR Program routes that cannot be paid for with BIA Road Maintenance funds 

alone?

Question 24. What is the Departments’ estimate of the cost to remedy the unmet 

need for construction of transportation system roads and bridges in Indian country?

Question 25. At the close of FY 2004, did the BIA have any unobligated IRR Program funds from FY 2004 or prior years? If so: (i) what was the amount of those 

funds? (ii) how were those funds expended? And (iii) how much funding remains unobligated? 

Standardized Contracts and Funding Agreements to Eliminate Delays in 

Disbursing IRR Program Funds 

Indian tribes have expressed frustration at the length of time the BIA takes to 

disburse appropriated IRR funds to Tribes that are eligible to enter into contracts 

under the Indian Self-Determination Act, especially in places that have very short 

construction seasons. The BIA will not disburse funds until the Tribe enters into 

an ISDA contract, but Tribes have reported that the contracting process is overly 

antagonistic and that BIA contracting officials often refuse to incorporate important 

provisions of SAFETEA–LU and the 2004 IRR Program regulations into contracts. 

Many Tribes have requested that the BIA adopt a simple uniform model ISDA contract to facilitate the contracting process, improve the timeliness of the disbursal of 

funds, and ensure that the contracts used to transfer funds comply with current 

(rather than now-outdated) laws and regulations. 

Question 26. Why has it taken over a year for the Interior Department to develop 

a simple, uniform, Indian Self-Determination Act contract model?

Question 27. What training schedule and resources does the BIA have to train Regional Office personnel, Tribal officials and Tribal Technical Assistance Programs 

(TTAPs) in the use of the model ISDA contract to make the contracting process less 

confrontational?

Question 28. What measures have the Departments put in place to simplify and 

speed the process of moving IRR and BIA road maintenance funds from the agencies 

to BIA Regions and Tribes?

Question 29. What does the BIA perceive to be the legal obstacles, if any, to include provisions permitting innovative financing techniques in Title I Indian SelfDetermination Act contracts and Title IV Self-Governance Agreements as authorized under 25 C.F.R. § 170.300 et seq.? 

Timely Approval of Tribal Transportation Improvement Programs 

In order to ensure that federal highway funds are spent only for IRR projects that 

have been approved by the BIA and the FHWA, the IRR Program regulations require each Tribe to prepare a Tribal Transportation Improvement Program (TTIP) 

which must be approved first by the BIA, and then by the FHWA and ultimately 

included on the IRR Transportation Improvement Program (IRRTIP). Under the 

regulations, Tribes may only expend funds for projects that are included on the 

FHWA-approved IRRTIP. 25 C.F.R. § 170.116(e). Tribes have expressed frustration 

that the BIA takes an inordinately long time to approve and update Tribal TIPs and 

to submit them to the FHWA for inclusion on the IRRTIP. As a result Tribes with 

self-determination contracts often cannot expend their IRR Program funds, because 

their projects have not been included on the IRRTIP. In one BIA Region for example, in FY 2006 the BIA only approved the TIPS of approximately 10 percent of 

Tribes with ISDA contracts with the result that the remaining Tribes have been unable to expend their IRR Program funds. 

Question 30. How long does it take on average for the BIA and FHWA to approve 

and include a Tribal Transportation Improvement Program in the IRR Program-TIP 

after the Tribe has submitted it to the agency?

Question 31. What mechanisms has your Agency adopted or proposed to speed 

this process?

Question 32. Do the BIA and FHWA permit Tribes to submit TTIPs via the internet and to track progress of the TTIP approval process on-line? 

Amending the Part 170 Regulations 

SAFETEA–LU is almost two years old and yet the Interior Department has not 

promulgated draft regulations to implement the many provisions Congress included 

in that Act to improve the IRR Program and transportation infrastructure in Indian 

country. 

211

Question 33. When does the Department of the Interior plan to issue final regulations that amend the Part 170 IRR Program regulations to reflect the many positive 

provisions of SAFETEA–LU?

Question 34. What guidelines or regulations has the Department adopted (or does 

it plan to adopt) to help Tribes take advantage of their eligibility under SAFETEA–

LU for the National Scenic Byways Program, the Alternative Transportation in 

Parks and Pubic Lands Program and the Transportation, Community, and System 

Preservation Program?

Æ