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S. HRG. 111–917

EXAMINING TRIBAL TRANSPORTATION IN INDIAN

COUNTRY

FIELD HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

OCTOBER 15, 2010

Printed for the use of the Committee on Indian Affairs

(

(II)

COMMITTEE ON INDIAN AFFAIRS 

BYRON L. DORGAN, North Dakota, Chairman 

JOHN BARRASSO, Wyoming, Vice Chairman 

DANIEL K. INOUYE, Hawaii 

KENT CONRAD, North Dakota 

DANIEL K. AKAKA, Hawaii 

TIM JOHNSON, South Dakota 

MARIA CANTWELL, Washington 

JON TESTER, Montana 

TOM UDALL, New Mexico 

AL FRANKEN, Minnesota 

JOHN MCCAIN, Arizona 

LISA MURKOWSKI, Alaska 

TOM COBURN, M.D., Oklahoma 

MIKE CRAPO, Idaho 

MIKE JOHANNS, Nebraska 

ALLISON C. BINNEY, Majority Staff Director and Chief Counsel 

DAVID A. MULLON JR., Minority Staff Director and Chief Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on October 15, 2010 .......................................................................... 1

Statement of Senator Tester ................................................................................... 1 

WITNESSES

Baxter, John R., Associate Administrator for Federal Lands, Federal Highway 

Administration, U.S. Department of Transportation; accompanied by Robert 

Sparrow, Jr., Manager, Indian Reservation Roads Program, Federal Highway Administration ............................................................................................. 7

Prepared statement .......................................................................................... 9

Echo Hawk, Hon. Larry J., Assistant Secretary for Indian Affairs, Department of the Interior; accompanied by Michael S. Black, Director, Bureau 

of Indian Affairs, Department of the Interior and Leroy Gishi, Chief, Division of Transportation, Bureau of Indian Affairs .............................................. 3

Prepared statement .......................................................................................... 4

Keel, Hon. Jefferson, President, National Congress of American Indians 

(NCAI) ................................................................................................................... 14

Prepared statement .......................................................................................... 15

Moran, Hon. E.T., ‘‘Bud’’ Chairman, Confederated Salish and Kootenai Tribes 26

Prepared statement .......................................................................................... 27

Rosette, Sr., Timothy W., Chief, Environmental Health Division, Chippewa 

Cree Tribe, Rocky Boy Reservation .................................................................... 33

Prepared statement .......................................................................................... 34

Steele, Jr., James, Chairman, Montana-Wyoming Tribal Leaders Council ........ 32

Smith, John P., Director, Division of Transportation, Eastern Shoshone and 

Northern Arapaho Tribes .................................................................................... 39

Prepared statement with attachment ............................................................. 40

ADDITIONAL TESTIMONY

Begay, Sampson, Chairman, Transportation and Community Development 

Committee, Navajo Nation .................................................................................. 77

Prepared statement with attachment ............................................................. 79

Hostler, Jacque, California Primary Representative; Vice Chairperson, Indian 

Reservation Roads Coordinating Committee ..................................................... 70

Prepared statement .......................................................................................... 72

Howlett, Kevin, Commissioner, District 1, Montana Department of Transportation ..................................................................................................................... 65

Prepared statement .......................................................................................... 67

Kirn, Rick, Member, Fort Peck Assiniboine and Sioux Tribe; Member, Fort 

Peck Tribal Council .............................................................................................. 97

Knaus, Shirley, Vice Chairperson, Trinidad Rancheria ....................................... 121

Lynch, Jim, Director, Montana Department of Transportation ........................... 64

Palmer, Richard, White Mountain Apache Tribe .................................................. 96

Penney, Tim, Tribal Transportation Coordinator, Federal Highway Administration, Office of Policy ........................................................................................ 122

Red Tomahawk, Hon. Pete, Director of Transportation Planning and Development; Great Plains Region Primary Member, Indian Reservation Roads 

Program Coordinating Committee, Standing Rock Sioux Tribe ....................... 76

Russell, Scott, Secretary, Crow Nation .................................................................. 68

Spoonhunter, Hon. Harvey, Chairman, Wind River Indian Reservation ............ 96

St. Goddard, Jay, Blackfeet Tribal Business Council ........................................... 69

Whatoname, Sr., Hon. Wilford, Chairman, Hualapai Tribe ................................. 97

Prepared statement with attachment ............................................................. 98

Page

IV

LISTENING SESSION

Allison Binney, Majority Staff Director/Chief Counsel, Senate Committee on 

Indian Affairs, presiding ...................................................................................... 119

APPENDIX

Black Eagle, Hon. Cedric, Chairman, Apsaalooke (Crow) Nation, prepared 

statement .............................................................................................................. 129

Hinton, Sr., Hon. Timothy P., Vice Chairman, White Mountain Apache Tribe, 

prepared statement .............................................................................................. 148

King, Tracy ‘‘Ching’’, President, Fort Belknap Indian Community Council, 

prepared statement with attachment ................................................................. 151

Murphy, Hon. Charles W., Chairman, Standing Rock Sioux Tribe, prepared 

statement with attachment ................................................................................. 133

North Coast Tribal Chairmen’s Association (NCTCA), prepared statement ...... 144

(1)

EXAMINING TRIBAL TRANSPORTATION IN 

INDIAN COUNTRY 

Friday, October 15, 2010

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Polson, MT. 

The Committee met, pursuant to notice, at 2 o’clock p.m. in the 

Best Western KwaTaqNuk Resort Building, Hon. Jon Tester, presiding. 

[The hearing opened with the Pledge of Allegiance and a blessing 

of the proceedings.] 

STATEMENT OF HON. JON TESTER,

U.S. SENATOR FROM MONTANA 

Senator TESTER. I’d like to call this Senate Committee on Indian 

Affairs Field Hearing on tribal transportation to order. 

First of all, I would just say welcome to Montana to all of you. 

I want to thank the members of the Confederated Salish and 

Kootenai tribe for hosting us here on the beautiful Flathead Lake 

at the KwaTaqNuk Resort on the shores here of the Flathead. A 

beautiful spot to be. And want to thank everybody who traveled 

across the country to be here today. Thank you very much for that. 

I think this is a very important hearing. And we have a great 

couple panels that we’re going to hear from shortly. 

Once again, I want to thank Chairman Moran. I want to thank 

Reuben and Tony very much for helping us open this Committee 

hearing. 

Today’s hearing is to look into the current status of Tribal transportation. And I look forward to sharing our discussion today with 

my colleagues on the Senate Indian Affairs Committee. 

As the folks in this room know all too well, our transportation 

infrastructure is critical to economic development, creating jobs and 

improving the lives of everybody who lives in Indian country. 

As with other challenges facing Indian country, the situation is 

getting better. Our hearing today is progress. But we have more 

work to do, much more work to do. 

The Committee last addressed this topic back in July of 2007. 

Since then we’ve consulted with tribes around the country. Chairman Dorgan released draft legislation in March 2009 called the 

TRIP Act. The bill seeks to address many of the issues raised at 

that hearing back in July of 2007 and with the consultations that 

have been held. So I look forward to hearing the views of the witnesses on that draft. 

2

As we move forward, my priorities for any legislation are safe 

roads, responsibly invested taxpayer dollars, stronger transportation infrastructure, and more American jobs in that process. 

As with almost every issue facing Congress today, the simple solution seems to be more money. Of course that’s easier said than 

done. Today’s financial reality is that we’re going to have to make 

fewer dollars go much further. But even if we can’t find more 

money, it’s good to ensure that it’s invested fairly and smartly. And 

I want to make sure we maintain roads in Indian country to the 

same standard that we maintain other roads. 

I also want to make sure that community members are working 

together to solve community challenges. In many instances, reservation roads serve Indians and non-Indians alike. We need to encourage government-to-government partnership between tribes and 

state and federal agencies at every level. We have good examples 

of those partnerships in Montana, and I look forward to our witnesses talking about them today. 

While we fight wars all over the world, Montanans should be 

able to work across the fence with one another. I am willing to lend 

a hand in that process however I can. 

Today’s hearing is organized slightly different than most committee hearings. Like others, we’ll have two panels of witnesses. 

The first panel is comprised of government witnesses. The second 

panel is comprised of tribal leaders. 

The tribal leaders will tell us about their priorities for reauthorizing the upcoming Highway Bill, their fight to maintain funding 

equity and provide examples of how the Recovery Act has improved 

roads and created jobs in Indian country. 

Administration witnesses will report on their efforts to ensure 

funding equity, to ensure transportation dollars stretch as far as 

possible in Indian country, and their plans for including tribal leaders from the very beginning of the process to craft the next Highway Bill. 

The last part of this hearing is going to be just a bit different. 

Assuming we have time, and we will have time because we will 

hold our presenters to the allotted amount of time, we will dedicate 

the last half hour to take public comments. 

I am going to give preference to tribal officials in the public comment period, and then we’ll go to everybody else. 

So with that I want to introduce the first panel. We have the 

Honorable Larry J. Echo Hawk, Assistant Secretary for Indian Affairs, Department of the Interior, Washington, D.C. Larry, welcome 

to Montana. I very, very much appreciate Larry being here today. 

I supported his nomination for this position and his confirmation 

in the Senate. Larry is a quality individual. He has testified before 

this Committee several times, and we very much appreciate you 

being at this important hearing. Thank you, Larry. 

He is accompanied by Mr. Michael Black, who is the Director of 

the Bureau of Indian Affairs in the Department of the Interior in 

Washington, D.C. Michael, thank you very, very much for being 

here today. I appreciate you guys making the trip. 

We also have John R. Baxter, Associate Administrator of Federal 

Lands Highway Program at the Department of Transportation in 

3

Washington, D.C., a very, very important position as it applies to 

federal lands, roads, highways and the like. 

He is accompanied by Robert Sparrow, Jr., who is the manager 

of the Indian Reservation Roads Program for the Federal Highway 

Administration in Washington, D.C., and your title talks about the 

importance of your position in particular as it applies to this hearing. So thank you for being here, Robert. 

And then last but certainly not least, we have the Honorable Jefferson Keel, who is the President of the National Congress of 

American Indians in Washington, D.C. 

Although, in past hearings we have included NCAI on the second 

panel, we thought it more appropriate for them to testify on today’s 

first panel. Not only to honor the principals of government-to-government relations, but also because NCAI faces some of the same 

challenges that our agencies do. They represent both urban and 

rural tribes with sometimes very different perspectives and priorities. So perhaps Jefferson can shed some light on that and how to 

prioritize some of these important, yet very complex issues. 

Once again, before I call on you, Larry, let me remind the witnesses to restrict your oral testimony to five minutes. We will make 

sure that your complete written testimony is a part of the official 

record. But, you know, use your judgment and try to make it—and 

I’m not going to be absolutely, smack-on, cut you off, but if you 

tend to keep going, I’ll remind you of that. 

And by the way, it’s not that we don’t want to hear everything 

you’ve got to say. We do want to hear everything you got to say. 

So you’ve got to make it as concise as possible. And we appreciate 

that. 

We want to thank you very much. And with that, Larry. 

STATEMENT OF HON. LARRY J. ECHO HAWK, ASSISTANT

SECRETARY FOR INDIAN AFFAIRS, DEPARTMENT OF THE

INTERIOR; ACCOMPANIED BY MICHAEL S. BLACK,

DIRECTOR, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF 

THE INTERIOR AND LEROY GISHI, CHIEF, DIVISION OF 

TRANSPORTATION, BUREAU OF INDIAN AFFAIRS 

Mr. ECHO HAWK. Thank you, Senator Tester. I appreciate the invitation to be here, especially when you made the personal call to 

me. I do appreciate that personal invitation you gave me. I wanted 

to mention that not only do I have the BIA Director with me today, 

but the Division Chief over at BIA Transportation, LeRoy Gishi is 

also with me. We want to make sure that whatever questions are 

presented to us, that we give you a detailed answer. 

I want to highlight just a few points from my written statement 

that’s been submitted. I’ll begin by just stressing the importance of 

the roads in Indian country. President Obama and Secretary 

Salazar have identified their top priorities as being education, public safety and economic development. Roads and highways are involved in all three of those top priorities. 

It is vitally important that we have an adequate transportation 

system in Indian country, because roads connect tribal citizens to 

vital services, they provide travel to and from school, access to 

medical facilities, delivery of emergency services, access to jobs and 

4

economic markets. So the transportation system in Indian country 

must be adequate and it must be safe. 

Unfortunately, we still have great needs in Indian country. I 

want to note that we are very blessed to have been able to have 

the ARRA funding that has made a significant difference in our 

ability to repair and restore roads in the BIA Roads Program. We 

have received $141 million, which led to 400 projects under that 

program. Under the IRR program, we’ve received $225 million, 

which has funded 420 projects. In addition, $50 million is being 

awarded to tribes contracting directly with Federal Highways Administration. I’m very pleased to say that the deadline that we 

were facing for obligating these funds on September 30th of this 

year, we were able to obligate 99.9 percent of those funds. So that 

is a very nice thing to be able to report. And I want to thank all 

people who made that possible. 

Our next challenge is to achieve a timely outlay of these projects. 

Our staff is working very hard to accomplish that. 

I want to make a few comments with regard to Question 10 and 

the distribution of the IRR Program funds. I’ve been fortunate to 

have some very hard-working people involved in our coordinating 

committee that is spread across Indian country representing all regions. They provide recommendations, not only to BIA, but to the 

Federal Highway Administration on policies and procedures. I 

thank them for their service. 

But when it came to Question 10, they could not resolve the recommendation that they would like to present. And there are differences in Indian country about what ought to be done. So I recall 

going to a meeting at the National Congress of American Indians 

over a year ago in Palm Springs, and NCAI tried to resolve that 

and were unable to do it. So when I was asked to join with the Federal Highways Administration and try to resolve that, we did it. 

We didn’t want to be involved in any kind of disagreement among 

tribes, but we were asked to do it and we did our best. 

So we have generated a proposal to try to move that Question 

10 forward. And I want to thank all the people that have been involved in that process. We have done consultation sessions 

throughout Indian country where we heard from numerous tribal 

leaders. I went to assure everyone that all of those comments are 

being considered. This morning we once again heard from tribal 

leaders who testified and spoke at the end of our discussions this 

morning to assure them that their comments will be heard and 

considered as we decide how to move forward with our proposal. 

Lastly, I just want to assure the Senate Indian Affairs Committee that within Interior and Indian Affairs, we will be working 

diligently to ensure that tribal needs are met as the reauthorization of the safety move moves forward. 

Thank you very much, Senator. 

[The prepared statement of Mr. Echo Hawk follows:]

PREPARED STATEMENT OF HON. LARRY J. ECHO HAWK, ASSISTANT SECRETARY FOR

INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR

Good afternoon Mr. Chairman and members of the Committee. My name is Larry 

Echo Hawk and I am the Assistant Secretary for Indian Affairs at the Department 

of the Interior. With me today is Michael Black, the Director of the Bureau of Indian Affairs (BIA). And also with me today is LeRoy Gishi, the Division Chief for 

5

the BIA’s Division of Transportation. We are pleased to be here today to provide 

you with an overview of the BIA’s Road Maintenance Program and the Indian Reservation Roads (IRR) Program. 

Background 

The BIA has been involved in the repair, construction and reconstruction of roads 

on Indian Reservations since the 1920s. From 1950 until 1983, Congress appropriated annual construction and maintenance funds to the BIA to maintain, repair 

and construct roads on Indian Reservations. During this time, approximately $1.2 

billion were provided for both construction and maintenance of reservation roads. 

The Surface Transportation Assistance Act of 1982 (Public Law 97–424) created the 

Federal Lands Highways Program (Title 23 U.S. Code, Chapter 2) which established 

the IRR Program as a category of public roads providing access to or within Indian 

reservations, lands, communities and Alaska Native villages. This funding contributed to the improvement of roads and the replacement or rehabilitation of deficient 

bridges on or near reservations throughout Indian country. Shortly after the establishment of the IRR Program, only road maintenance funds were appropriated 

through the Department of the Interior. Since the establishment of the IRR Program, the federal construction investment has exceeded $6 billion in the IRR system 

that is comprised of BIA, tribal, state, county and local roads and bridges. The IRR 

Program is jointly administered by the BIA and the Federal Highways Administration (FHWA), which is within the Department of Transportation. 

There remains a great and continued need for improving the transportation system in Indian country. The BIA views this as a joint responsibility, not only of federal agencies, but a shared responsibility of state and local governments with transportation investments on or near Indian and Alaska Native communities. Improved 

and maintained transportation systems provide increased public safety and economic opportunities in Indian communities. Safe roads are important when transporting people in rural areas to and from schools, to local hospitals, and for delivering emergency services. In addition, transportation networks in Indian and Alaska 

Native communities are critical for economic development in such communities because these transportation networks provide access to other economic markets. 

The IRR Program comprises over 126,000 miles of public roads with multiple owners, including Indian tribes, the BIA, states and counties. Coordination among all 

of these owners is required in order to maximize available resources to address 

transportation needs. 

Road Maintenance in the BIA 

The BIA currently implements both the Department of Transportation’s Highway 

Trust Fund-funded IRR program as well as the Department of the Interior’s (DOI) 

funded Road Maintenance Program. The DOI’s Road Maintenance Program has traditionally been the responsibility of the agency owning the road. Of the 126,000 

miles roads in the IRR Program, the BIA has responsibility for 28,000 miles of roads 

designated as BIA system roads. The BIA receives Tribal Priority Allocation (TPA) 

funding annually for the administration of the road maintenance program for those 

roads. Further, approximately 30 percent of tribes with BIA system roads within 

their reservation boundaries currently operate the road maintenance program under 

a P.L. 93–638 self-determination contract or agreement. And of the 28,000 BIA road 

miles, approximately 20,500 miles are unpaved roads. Therefore, over 73 percent of 

the BIA roads are unpaved, and are, thus, considered ‘‘inadequate’’ from the perspective of the Level of Service index used to assess roads and bridges in the BIA 

road system. 

Question 10 of 25 CFR Part 170

In 2004, the Department of the Interior published the Final Rule establishing the 

policies and procedures governing the IRR Program. See 69 Fed. Reg. 43090 (July 

19, 2004), codified at 25 CFR Part 170. Question 10, in Appendix C to Subpart C 

of the Final Rule, addressed a question regarding the IRR Program’s funding formula. Since 2004, the IRR Program and Tribes have been struggling with ‘‘Question 

10’’ and the BIA and FHWA have worked to clarify the interpretation. 

As background, and for the purposes of the tribal shares formula, an ‘‘Indian reservation road’’ is a public road that is located within or provides access to an Indian 

reservation, Indian trust land, restricted Indian land, or Indian and Alaska Native 

villages. All tribes receive a portion of the $450 million annual IRR Program funding through a ‘‘tribal share’’ approach for their approved inventory of ‘‘Indian reservation’’ roads. These tribal shares are computed by a formula based on each roads’ 

Cost To Construct (CTC), Vehicle Miles Traveled (VMT), and population of the tribe. 

Every road in the inventory has a value associated to its CTC and VMT. 

6

Question 10 (Q10) addresses whether a road’s CTC and VMT is to count at 100 

percent in the formula calculation, or at the non-Federal share if the road is otherwise eligible for Federal-aid funds. See 69 Fed. Reg. at 43121. The non-Federal 

share is the local match percentage as established by the FHWA for federal aid system highways, which varies from 5 percent to 20 percent. The non-Federal share 

is the percentage of cost of Federal-Aid projects payable by the Federal Government. 

While the answer specified in the Final Rule was that a non-Federal share percentage should be applied, the BIA has administered the program with all costs 

counting 100 percent (except for State-owned roads), since there was no data in the 

inventory to clearly distinguish roads which were eligible for Federal funds. 

The Final Rule on IRR established an IRR Program Coordinating Committee 

(IRRPCC), to provide input and recommendations to both the BIA and the FHWA 

in the development or revision of the IRR Program’s policy and procedures. The 

IRRPCC has been reviewing the Q10 issue since August 2006 and has been unable 

to agree on a recommendation on this issue. As a result, representatives from the 

IRRPCC requested that the BIA and the FHWA develop a proposed clarification for 

Q10. This proposal eliminates road ownership from consideration and places the determination strictly on roadway classification. This clarification will allow the nonFederal share percentages to be applied to the roads that are determined to be otherwise eligible for Federal funds which will result in a consistent application of the 

non-Federal share across all roads in the IRR Program inventory. 

This proposed clarification recognizes that except for BIA and tribally owned 

roads (which contribute 100 percent to the CTC and VMT regardless of functional 

classification, as referenced elsewhere in the regulation) any road with a functional 

classification above local road or rural minor collector will contribute its CTC and 

VMT at the non-Federal share rate. This interpretation is aligned with the original 

language of Q10. Given the length of time this provision has been administered 

under a less than clear interpretation, any change will create questions from various 

locations where tribes may lose funding. However, until the work during the transition year is complete, the overall impacts to specific tribes will not be known. Nonetheless, since June of this calendar year, the BIA and the FHWA have held 10 regional tribal consultation meetings on this proposed interpretation of Q10. 

It is anticipated that the proposed clarification of Q10 will appropriately move the 

focus of discussions surrounding the IRR Program roads inventory and funding process from Q10 to the broader issues of the quality, physical size and composition of 

the IRR Program roads inventory. Achieving consistency in the IRR Program roads 

inventory is an on-going effort involving training, process improvements, and establishing consistent parameters that will require a dedicated effort from all parties 

over the next 2 to 3 years. 

American Recovery and Reinvestment Act (ARRA) 

On February 17, 2009, President Obama signed into law the American Recovery 

and Reinvestment Act of 2009 (Public Law 111–5) (ARRA). ARRA provided supplemental funding for infrastructure investment in Indian Country. A portion of ARRA 

funding was provided to the IRR Program within Indian Affairs, subject to certain 

restrictions and requirements. ARRA offered a unique opportunity to make tangible 

improvements to Indian communities, while promoting economic recovery through 

the preservation and creation of jobs. 

As of September 30, 2010, 99.9 percent of the available funds for both Repair and 

Restoration of BIA roads and bridges and the construction and reconstruction of IRR 

Program facilities were obligated to projects approved by the Secretaries of the Department of the Interior and the Department of Transportation. Within the Repair 

and Restoration of BIA roads program, approximately 400 projects were awarded 

over $141 million. Within the IRR Program, approximately 420 projects were awarded over $225 million. In addition, over $50 million was awarded to tribes contracting 

directly with the FHWA. Outlays for these programs under ARRA funding within 

the Department were 37 percent or $83 million for the IRR program and 53 percent 

or $75 million for the Repair and Restoration program. 

ARRA funds made a significant contribution to improving transportation facilities 

in Indian Country. Each eligible tribe was given the opportunity to receive maintenance and construction improvements on their BIA and IRR Program facilities 

(roads, bridges, transit structures, docks, boardwalks, etc). In addition, the provisions of ARRA authorized the Secretary of Transportation to redistribute unobligated funds to projects submitted by tribes based on a call for projects in February 

2010. The total ARRA funding redistributed by both agencies was approximately 

$22.5 million. One such project from redistributed unobligated funds was a project 

submitted by the Chippewa Cree Tribe of the Rocky Boy Indian Reservation in Montana. This project was a priority project for the Tribe because of the unsafe nature 

7

of the roadway alignment, which resulted in several severe accidents. This project 

was reviewed and scored in accordance with the provisions established by the BIA 

and the FHWA. The Chippewa Cree Tribe’s project was awarded the amount requested by the Tribe, in the amount exceeding $1.7 million. Likewise other tribes 

with annual allocations that were not enough to meet the needs of their priority 

projects were able to submit projects for review and consideration. These tribes received funds totaling over $15 million. 

Reauthorization of SAFETEA–LU 

The BIA, along with other Federal Land Management agencies within the Department, have and will continue to coordinate with each other in the development of 

the Administration’s proposal for the reauthorization of the Safe, Accountable, Flexible, Efficient Transportation Equity: A Legacy for Users (SAFETEA–LU Act). The 

need for prompt and immediate reauthorization of the SAFETEA–LU Act is crucial 

to tribal governments who rely on early notification of their tribal shares from the 

funding formula to plan their priority projects. The numerous short term extensions 

of SAFETEA–LU result in infrequent and delayed allocations to the tribes and have 

also resulted in late planning and obligations to tribal contracts. These delays force 

projects to be delayed as much as one year. The BIA commits to work with the Department to advance the reauthorization of SAFETEA–LU in the near future. 

Conclusion 

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

questions you may have.

Senator TESTER. Thank you, Larry. And we will have questions 

after everybody gets done on the first panel. 

John Baxter’s next. 

STATEMENT OF JOHN R. BAXTER, ASSOCIATE

ADMINISTRATOR FOR FEDERAL LANDS, FEDERAL HIGHWAY 

ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION; 

ACCOMPANIED BY ROBERT SPARROW, JR., MANAGER,

INDIAN RESERVATION ROADS PROGRAM, FEDERAL

HIGHWAY ADMINISTRATION 

Mr. BAXTER. Senator Tester, thank you for inviting me to testify 

today on the transportation issues facing the Native American communities and the programs that the Federal Highway Administration administers to this tribe in addressing these challenges. I 

thank you for making my full statement part of the record for this 

hearing. 

The Indian reservation road system consists of more than 

126,000 miles of road and 8,000 bridges that link housing, schools, 

emergency services and work places as well as facilitate tourism 

and resource use. Millions of vehicle miles are travelled annually 

on the Indian reservation road system, even though it’s among the 

most rudimentary of any transportation at work for the United 

States. 

More than 60 percent of the system is unpaved and about 24 percent of the bridges are classified as deficient. These conditions 

make basic travel associated with the community difficult for residents of tribal communities. We are committed to providing safe, 

efficient transportation to both residents and visitors to and within 

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

The Indian Reservation Roads Program administered by FHWA 

in partnership with the Bureau of Indian Affairs serves over 560 

federally recognized Indian tribes and Alaska Native villages in 32 

states. 

8

In many cases this is the only program where we have a source 

of funds for transportation improvements. 

Today I’d like to focus on three key areas where our agency has 

been working to address transportation challenges in Indian country. These areas include safety, outreach and capacity building, and 

implementation of the Recovery Act. 

Despite reaching record-low traffic deaths last year on all the nation’s roads, the annual fatality rate on Indian reservation roads is 

still more than three times the national average. To address this 

serious problem the FHWA has co-sponsored seven state-based 

safety summits in the past two years focused on this issue and to 

bring safety partners together. More of these summits are planned 

for this year. 

The agency also continues to implement safety-based programs 

such as the Highway Safety Improvement Program and the Safe 

Routes to School Program, which benefits tribes as well as states 

and are aimed at reducing crash fatalities and injuries on public 

roads through the implementation of infrastructure improvements. 

The Highway Safety Improvement Program funds have been 

used in Montana to provide improvements such as the installation 

of variable message signs on U.S. 2 on the Blackfeet reservation 

and the addition of a left-turn bay on U.S. 93 on the Flathead reservation. And the Montana Department of Transportation provided 

over $50,000 for Safe Routes to School funds for the city of Ronan 

for the design and construction of hard-surfaced bicycle and pedestrian paths, lighting, and installation of seven bike racks at the 

Ronan Elementary School within the Flathead reservation just 

south of here. 

In addition, FHWA supports tribes for outreach and capacitybuilding programs. The agency maintains seven tribal technical assistance program centers that provide a variety of training and professional and development programs, technology updates and technical assistance to improve road management and safety. These 

centers are a key resource for basic services and have helped many 

tribes to become self-sufficient as sovereign nations in transportation delivery. 

The Recovery Act supplemented safety funding for tribal communities by providing additional $310 million for the Indian Reservation Roads Program. FHWA and BIA have worked diligently to ensure that the Recovery Act funds for these projects were distributed 

quickly and wisely. And as it has already been noted, nearly 99.9 

percent of the Recovery Act were obligated to tribes for eligible and 

other infrastructure-related projects, including improving roads 

that provide critical links between tribal residences and vital community services such as schools and health care facilities. 

In addition, the Recovery Act TIGER funds are being used in the 

Mission Valley and Lake County for road paving and construction 

and will improve connectivity and create a safer, more convenient 

transportation system for residents of the county and the Flathead 

Indian Reservation. 

We recognize that transportation is a critical tool for tribes to improve the quality of life and the economy in our communities. 

FHWA is committed to improving transportation access to and 

through tribal lands by providing safe and innovative roadways 

9

that blend into or enhance the existing environment by providing 

technical services to the transportation community and by coordinating our efforts with partnering agencies and tribes such as BIA. 

We’re also focused on building more effective day-to-day working 

relationships with Indian tribes with respect to rights of self-government and self-determination based on the principals of tribal 

sovereignty. 

Senator Tester, thank you for the opportunity to testify and I’ll 

be pleased to answer your questions. 

[The prepared statement of Mr. Baxter follows:] 

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

LANDS, FEDERAL HIGHWAY ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION

Chairman Dorgan, Senator Tester, and Members of the Committee, thank you for 

the opportunity to testify today regarding transportation issues facing Native American communities and programs administered by the Federal Highway Administration (FHWA) that provide support to Tribes for addressing these issues. 

President Obama’s meeting in November 2009 with tribal leaders from across the 

Nation signaled the start of a new and stronger relationship between the Tribes and 

the Federal Government. The President made very clear that Native Americans will 

not be forgotten by this Administration, and he gave his strong commitment to addressing tribal issues and concerns. By establishing an Office of Tribal Liaison within the White House, the President has made sure that Native Americans will have 

a seat at the table when issues, including the economy, education, health care, and 

the environment, are being discussed—issues which can all involve transportation. 

Secretary LaHood shares President Obama’s commitment to addressing tribal 

issues and concerns. This past spring, the Secretary spoke before the National Congress of American Indians, emphasizing the Department’s commitment to improving 

existing tribal transportation programs by seeking tribal input on important regulations, providing timely technical assistance, and ensuring tribes are given ample opportunities to compete for grants. The Department also finalized its Tribal Consultation Plan, a detailed plan of action the agency will take when developing, changing, 

or implementing policies, programs, or services with tribal implications. 

In addition, Secretary LaHood has made livability a key objective for transportation. This initiative is not a one-size-fits-all approach—we recognize that transportation needs for tribes are often different than what we see needed elsewhere in the 

U.S. transportation network. In much of this country, we take for granted that 

roads and highways will be there for children to reach their schools, for emergency 

vehicles to reach those in need of medical care, and for members of the community 

to get to work. But, in Indian Country, you cannot always make that assumption. 

Moreover, tribal communities need good roads to support their economic development. 

FHWA has a long history of supporting tribal governments’ rights to self-determination and working directly with Tribes in a government-to-government relationship. FHWA’s top leadership continues to meet directly with tribal government 

elected officials and transportation staff, and is committed to delivering a transportation program that works for all Tribes whether they are large or small. 

FHWA has sought to improve the state of tribal transportation by working directly with tribal governments to improve Tribes’ technical capacity, to improve 

safety on reservations and native communities, and to foster partnerships between 

tribal governments, Federal agencies, and State DOTs. 

The Indian Reservation Roads (IRR) program, administered by FHWA in partnership with the Bureau of Indian Affairs (BIA), is critical to tribal communities to support tribal transportation needs. In many cases, it is the only source of revenue for 

transportation improvements. In working through FHWA’s partnership with the 

Tribes and the BIA, the IRR program seeks to balance transportation mobility and 

safety goals with the environmental and cultural values of tribal lands. FHWA also 

works with the Federal Transit Administration and the National Highway Traffic 

Safety Administration (NHTSA) in coordinating transportation programs that focus 

on planning, safety, and construction of roads and transit services to and on reservations and serving Alaska Native villages. 

10

Overview 

The IRR system of roads provides access to and within Indian reservations, Indian trust land, restricted Indian land, eligible Indian communities, and Alaska Native villages. The IRR system consists of more than 120,000 miles of roads which 

link housing, schools, emergency services, places of employment, and facilitate tourism and resource use. Almost eleven billion vehicle miles are traveled annually on 

the IRR system, even though it is among the most rudimentary of any transportation network in the United States. More than 60 percent of the system is unpaved. 

If only BIA and tribal roads of the IRR system are considered, this number increases to over 80 percent. Within the system, there are more than 8,000 bridges 

and approximately 24 percent of these bridges are classified as deficient. These conditions make it very difficult for residents of tribal communities to travel to hospitals, stores, schools, and employment centers—the most basic needs for a livable 

community. 

The poor road quality on tribal lands also affects safety. Last year, Secretary 

LaHood announced that the number of traffic deaths on U.S. roads reached a record 

low. Despite the gains we have made on other systems, the annual fatality rate on 

Indian reservation roads continues to be more than three times the national average. Safety continues to be the Department’s top priority, and FHWA is working 

closely with tribes, the BIA, NHTSA, and others to address this disproportionate 

level of fatalities on tribal roads. 

The IRR program, established in section 204 of title 23, United States Code, is 

the largest Federal Lands Highway (FLH) program, and it is unique due to the relationship with Federally-recognized Indian Tribal Governments under the program. 

The IRR program serves over 560 Federally-recognized Indian Tribes and Alaska 

Native villages in 32 States. FHWA co-administers the IRR program with the BIA 

under an agreement originating in 1948 and a Stewardship Plan from July 1996. 

IRR program funding has grown significantly under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU), from 

a program size of $275 million annually under the Transportation Equity Act for 

the 21st Century (TEA–21) to $450 million annually today. This equates to a total 

of $2.42 billion over the life of SAFETEA–LU, including the recent extensions 

through the end of this calendar year. These funds have been distributed according 

to a tribal shares formula, which was developed through a negotiated rulemaking 

with tribal governments. SAFETEA–LU also increased the eligible uses of IRR program funds by allowing a Tribe to use up to 25 percent of its share of funds for 

road and bridge maintenance activities. This change allowed Tribes to supplement 

the funding they receive annually from the Department of the Interior (DOI) for 

maintenance activities. It allowed the Tribes to address critical safety, snow removal, and pavement preservation issues that otherwise could not be addressed. 

The increased funding and programmatic changes provided in SAFETEA–LU for the 

IRR program, along with an additional $310 million provided by the American Recovery and Reinvestment Act of 2009 (Recovery Act), discussed below, have provided 

tools and resources to substantially improve tribal transportation. Despite progress, 

however, much work remains. 

Safety Programs 

Safety remains a significant issue in Indian Country. Native Americans are overrepresented in several fatality categories—including individuals under the age of 35, 

unbelted drivers, and individuals driving under the influence of alcohol. Seven 

State-based summits have been held in the past two years to focus on the subject 

and to bring the many safety partners together to discuss the safety issues affecting 

them. FHWA and NHTSA will continue these summits in the future to promote 

safety strategies across the four E’s of safety—engineering, enforcement, education, 

and emergency medical services. Strategies such as Road Safety Audits and community based enforcement are proving to be effective tools for reducing fatalities. 

Highway Safety Improvement Program 

The Highway Safety Improvement Program (HSIP) was established by 

SAFETEA–LU with the overall purpose of achieving a significant reduction in traffic fatalities and serious injuries on all public roads through the implementation of 

infrastructure-related highway safety improvements. Since the program’s inception, 

HSIP funding has been utilized for tribal lands projects across the country. 

In Montana, for example, two HSIP construction projects totaling $1.88 million 

provided improvements such as the installation of Variable Message Signs on US–

2 on the Blackfeet Reservation and the addition of a left-turn bay on US–93 on the 

Flathead Reservation. 

11

A $107,650 HSIP project in North Carolina along US–74 from the Haywood County line to NC–28 (North), in Cherokee Nation, funded the installation of milled rumble strips on the median and outside shoulders. 

In North Dakota, two HSIP projects totaling $300,000 provided improvements 

along State highways within reservation boundaries of Standing Rock Reservation 

and Fort Berthold Reservation. Such improvements included the installation of 

shoulder and centerline rumble strips along State Highways 23 and 24. 

In Wisconsin, a $316,000 HSIP project was undertaken by the Wisconsin DOT 

along with the Forest County Potawatomi Tribe to improve a Tribal owned intersection at Everybody’s Road and USH 8 in Forest County. The intersection project was 

combined with $900,000 BIA funds and $74,000 Tribal funds to construct a newly 

relocated intersection and frontage road (Everybody’s Road) that leads to the Tribal 

headquarters offices and Tribal Community Center. 

Safe Routes to School 

The Safe Routes to School (SRTS) program is a Federally-funded but State managed and administered grant program established by section 1404 of SAFETEA–LU. 

Each State receives not less than $1 million each fiscal year to fund planning, design, and construction of infrastructure-related projects that will improve the ability 

of students to walk and bicycle to school. A portion of each State’s SRTS funding 

must also be used for non-infrastructure-related activities to encourage walking and 

bicycling to school. Federally-recognized Tribes are eligible sub-recipients of this 

State administered program. 

Several States are working with Tribes to promote the SRTS program. For example, the Montana DOT provided $51,823 in SRTS funds to the City of Ronan for the 

design and construction of approximately 400 lineal feet of hard-surfaced bicycle and 

pedestrian path, lighting, and installation of 8 bike racks at the Ronan elementary 

school within the Flathead reservation. The Washington DOT provided SRTS funds 

to the Taholah School District, serving the Quinault Indian Nation, for infrastructure, enforcement and education activities. In South Dakota, the DOT provided 

$15,815 in SRTS funds to the Sisseton-Wahpeton Oyate’s Enemy Swim Day School 

for a trail to the school. 

Section 402 State and Community Highway Safety Grant Funds 

NHTSA provides safety grant funds to the Secretary of the Interior to save lives, 

prevent injuries, and reduce economic loss due to motor vehicle related crashes on 

Tribal land. The BIA administers the funds, known as the Section 402 State and 

Community Highway Safety Grant Funds. NHTSA provides technical assistance to 

Tribes through partnership with BIA. 

SAFETEA–LU Funding for Tribal Transportation 

Although the IRR program is the principal funding source for tribal roads, these 

roads are eligible to receive funding under other SAFETEA–LU programs as well. 

Indian Reservation Roads Bridge Program (IRRBP) 

The Indian Reservation Roads Bridge Program (IRRBP) was established under 

TEA–21 and funded through a $13 million takedown from the primary IRR Program. The program’s purpose was to provide funding for reconstruction or rehabilitation of structurally deficient or functionally obsolete IRR bridges. SAFETEA–LU 

amended the IRRBP by establishing it as an independently funded program, authorized at $14 million per year, and allowing design activities to be funded. FHWA coordinated with the Indian Reservation Roads Program Coordinating Committee to 

implement these legislative changes. Since its inception in TEA–21, the IRRBP has 

provided more than $165 million in funding to nearly 300 different bridge projects 

in Indian Country. 

National Scenic Byways Program 

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

inception under the Intermodal Surface Transportation Efficiency Act of 1991 

(ISTEA). SAFETEA–LU authorized the Secretary of Transportation to make grants 

from this program directly to Indian Tribes and to allow Tribes to nominate Indian 

roads directly to FHWA (without going through a State department of transportation) for possible designation as a National Scenic Byway or an All-American 

Road. 

FHWA has participated in tribal transportation conferences to inform Tribes of 

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

America’s Byways Resource Center (in Duluth, Minnesota) to establish a tribal liaison position within the Resource Center to provide technical assistance to Indian 

12

Tribes for establishing tribal scenic byways programs and designating roads as Indian Tribe scenic byways. 

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

may submit grant applications directly to FHWA. In fiscal year 2009, Tribes submitted 10 applications directly to FHWA and two applications through the State departments of transportation, requesting a total of $1.85 million. The Department selected seven of the projects, providing a total of $945,232 in funding. 

Public Lands Discretionary Program 

The Public Lands Highway Discretionary program provides funding to any project 

eligible under title 23, United States Code, which is within, adjacent to, or provides 

access to tribal or Federal public lands. It is another source of funding that is available to Tribes for their transportation needs. During SAFETEA–LU, nearly $480 

million dollars was made available through this program. Of the $480 million, $52 

million was provided for 62 tribal related transportation projects. 

FHWA Implementation of SAFETEA–LU Requirements for Tribal

Transportation 

In addition to increased funding, SAFETEA–LU brought about many changes in 

how the IRR program is administered and to the roles and responsibilities of all 

parties involved in transportation delivery to tribal communities. Prior to 

SAFETEA–LU, FHWA’s role was to provide stewardship and oversight to the IRR 

program from a national perspective, and the BIA’s role was to work with the Tribes 

by delivering the funds and providing technical assistance. With the passage of 

SAFETEA–LU, Tribes now have the option to enter into IRR Program Funding 

Agreements and work directly with FHWA for their IRR Program share as long as 

they meet financial audit and management capacity requirements. The number of 

Tribes electing this option has grown from three the first year to more than 75 

Tribes today, with several more Tribes expressing an interest to FHWA. 

In response to this increase in the number of Tribes, and increased stewardship 

and oversight responsibilities, the Federal Lands Highway (FLH) Office, which has 

direct responsibility for administering the IRR program, has increased staffing and 

worked closely with the Tribes to develop program guidance. In addition to carrying 

out numerous face-to-face meetings with each Tribe and conducting outreach and 

training through webinars, regional conferences, and organized classes, FLH developed a new program manual for all Tribes, States, counties, and Federal agencies 

that communicates program expectations, roles and responsibilities, and best practices. 

National Indian Reservation Road Inventory 

SAFETEA–LU directed FHWA to complete a comprehensive national inventory of 

IRR eligible transportation facilities and submit a Report to Congress. The purpose 

of the inventory study was to develop the true need and cost for tribal transportation, to ensure that the data in the existing inventory is accurate, and to help 

streamline the procedures that Tribes utilize for updating their inventory. The inventory is the most significant factor used to calculate the tribal shares of IRR program funding; thus, it is critical that data in the inventory be as accurate as possible. 

FHWA completed and delivered the required Report to Congress in 2008. The Report outlined our assessment of the inventory process, including its accuracy and 

consistency of application. The Report included the identification of more than 

100,000 miles of road as well as recommendations for improvement and additional 

study areas. Since issuance of the Report, the inventory has grown to more than 

125,000 miles of road. As a result of the Report and issues that have arisen from 

the Question 10 series of consultations, FHWA and BIA will work together to review 

more than 75 percent of the inventory data this coming year. This work will clarify 

programmatic definitions and correct inventory errors and omissions to produce a 

more accurate data system. Ultimately, the inventory will reflect the needs of tribal 

road transportation and serve as an important tool to help make the program fair 

and equitable for all tribes. 

Outreach and Capacity Building 

Road Safety Audits and Safety Trainings 

Strategies such as Road Safety Audits (RSAs) and community based enforcement 

are proving to be effective tools for reducing fatalities on tribal lands. The FHWA 

Office of Safety sponsors training on Road Safety Fundamentals and RSAs, and 

works with State and local jurisdictions and tribal governments to integrate RSAs 

into the project development process for new and existing roads and intersections. 

13

RSAs examine the safety performance of an existing or future road or intersection 

by an independent, multidisciplinary team. They estimate and report on potential 

road safety issues and identify opportunities for improvements in safety for all road 

users. RSAs enable localities and Indian tribes with little or no safety data to get 

an expert assessment on how to improve the safety of their roads. 

RSAs were funded by FHWA’s Office of Safety from the Surface Transportation 

Research Development and Deployment Program for the following tribal organizations— Tohono O’odham and Navajo Nations in Arizona; Santa Clara Pueblo and 

Jemez Springs Pueblo, New Mexico; Standing Rock Sioux, North Dakota; the Eastern Band of Cherokee Indians, North Carolina; the Navajo Nation, Utah; and Red 

Cliff Band of Lake Superior. These RSAs were carried out in cooperation with State 

DOTs. 

Research and Development 

FHWA has launched a cross-functional initiative to address tribal transportation 

safety problems through research and practical applications. The project will support the development and adoption of the Tribal Safety Management System, which 

has been identified by a multi-agency committee as a key strategy to assist Native 

American Tribes in addressing transportation safety problems. The initiative will 

develop and implement comprehensive safety program templates that Tribes can 

use and tailor to their specific needs. The initiative also includes a pilot program 

in 3 tribal nations, the results of which will be included in a report showing the 

benefits, challenges, and lessons learned from the implementation of highway safety 

programs. 

Tribal Technical Assistance Program 

Tribes report that education and training remain significant challenges. Many 

Tribes do not have a sustainable level of transportation expertise, given their size 

and resources. The FHWA supports a tribal transportation assistance program with 

seven centers serving Indian Country. These Tribal Technical Assistance Program 

(TTAP) centers provide a variety of training and professional development programs, technology updates, and technical assistance to enhance road management 

and safety. They are a key resource for basic services and to help many Tribes become self-sufficient as sovereign nations in transportation delivery. The purpose of 

our seven TTAP centers is to foster a safe, efficient, and environmentally sound surface transportation system by improving the skills and increasing the knowledge of 

local transportation professionals. 

FHWA, through the TTAPs, continues to provide technical assistance and training 

to Tribes on conducting their own RSAs. For example, FHWA has provided funding 

and support to the Northern Plains TTAP to sponsor a Road Safety Audit Outreach 

Coordinator, who has provided training and RSAs for the Spirit Lake Nation, the 

Winnebago Tribe of Nebraska, and others. 

While FHWA has remained focused on implementing SAFETEA–LU since its enactment, the Agency has also been recently hard at work ensuring that Tribes use 

the much needed supplemental resources provided by the Recovery Act. 

American Recovery and Reinvestment Act of 2009 

In addition to SAFETEA–LU funding, the Recovery Act has supplemented fund- ing for tribal communities by providing an additional $310 million for the IRR program. Since the Recovery Act was signed into law by President Obama on February 

17, 2009, FHWA and BIA have worked diligently to ensure that the funds for these 

projects are distributed quickly, wisely, and with unprecedented transparency and 

accountability. The Federally-recognized Tribes were eligible to receive Recovery Act 

funding based on the IRR formula, which takes into account the highway projects’ 

estimated construction cost, volume of traffic along the route, and the Tribe’s current population. Much of the IRR portion of the Recovery Act has been dedicated 

to improving roads that provide critical links between tribal residences and vital 

community services such as schools and health care facilities. More than 99.9 percent of these Recovery Act were obligated. In the summer of 2009, the Blackfeet Indian Tribe awarded a project for $916,068 

to improve a 14-mile segment of road known as the Starr School Road. This nearlycompleted project will provide for a safer facility for school buses and other school 

traffic through sign replacement, new right of way fences, and new roadway striping. Drainage and pavement improvements will extend the life of the facility. 

On February 17, 2010, the one-year anniversary of the Recovery Act, Secretary 

LaHood announced $1.5 billion in Transportation Investment Generating Economic 

Recovery (TIGER) Grant awards for 51 projects nationwide. The Department could 

provide awards to fewer than 3 percent of the more than 1,400 applicants, who submitted more than $60 billion in applications for this $1.5 billion program. 

14

TIGER funds are being used for an important project in the Mission Valley in 

Lake County, Montana which overlays most of the Flathead Indian Reservation. 

This $12 million project is to upgrade city and county roads and increase the safety 

and transportation options in this predominantly rural area. Road paving and construction will improve connectivity and create a safer and more convenient transportation system for residents of the county and the Flathead Indian Reservation, including the Confederated Salish and Koontenai Tribes. The project also includes 

vital improvements to Skyline Drive, a road near the city of Polson, which the Montana DOT identified as a safety risk. 

FHWA, along with BIA and with input from Tribes, developed a process that described the requirements for Tribes to receive and obligate their share of Recovery 

Act funding and focused on assuring obligation of the majority of the $310 million 

before the end of this past fiscal year. FHWA and BIA developed guidance to ensure 

a fair and transparent process to redistribute funds for cases where funds would 

otherwise not get obligated. The redistribution of more than $22.5 million to approximately 25 Tribes nationwide helped ensure the efficient and effective use of Recovery Act funds. 

Conclusion 

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

communities. The challenges are to maintain and improve transportation systems 

serving Indian lands and Alaska Native villages in order to provide safe and efficient transportation options for residents and access for visitor enjoyment, while at 

the same time protecting environmentally sensitive lands and cultural resources. 

The Department is committed to improving transportation access to and through 

tribal lands through stewardship of Federal Lands Highway programs by providing 

balanced, safe, and innovative roadways that blend into or enhance the existing environment; and by providing technical services to the transportation community. We 

are also committed to building more effective day-to-day working relationships with 

Indian Tribes, reflecting respect for the rights of self-government and self-determination based on principles of tribal sovereignty. 

Members, thank you again for this opportunity to testify. I will be pleased to answer any questions you may have.

Senator TESTER. Thank you, John. Next we’ll hear from the National Congress of American Indians, Jefferson Keel. 

STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, 

NATIONAL CONGRESS OF AMERICA INDIANS 

Mr. KEEL. Thank you, Senator. On behalf of National Congress 

of American Indians, I want to thank you for the opportunity to 

testify and provide information regarding the tribal transportation 

infrastructure. Thank you. 

Indian reservation roads comprise over 120,000 miles of public 

roads with multiple owners including the Bureau of Indian Affairs, 

Indian tribes, states and counties. 

Indian reservation roads are the most underdeveloped road network in the nation, yet it’s the primary transportation systems for 

all residents of and visitors to American Indian land and Alaska 

Native communities. 

Over 66 percent of the system is unimproved earth and gravel. 

Approximately 24 percent of Indian reservation bridges were classified as deficient. In many places there are no roads and bridges to 

begin with, forcing huge travel distances on inadequate roads. 

These conditions make it very difficult for residents of tribal communities to travel to hospitals, stores, schools and employment centers. 

Next year we anticipate that Congress will reauthorize the federal transportation programs. And it’s vital that the Indian Reservation Roads Program receives significant increases in funding. 

Lives and livelihoods depend on it. 

15

NCAI urges Congress to increase the funding for all tribal transportation programs to address the deficiency with road construction 

and maintenance, to continue to build upon the current infrastructure, and increase technical assistance to tribal governments. 

Indian people suffer from injury and death by driving and walking along reservation roadways with rates far above the national 

average, as you’ve already heard. Shocking data showed thousands 

of fatal motor vehicle crashes on Indian reservation roads and the 

trend is increasing. While the number of fatal crashes per year has 

declined 2.2 percent nationally, the number of fatal motor vehicle 

crashes on Indian reservations increased over 52 percent. 

American Indians also have the highest rate of pedestrian injury 

and death per capita of any racial or ethnic group in the United 

States. 

NCAI recommends that Congress use the 2 percent tribal funding set aside within the High Risk Rural Roads Program to create 

a new Tribal Traffic Safety Program. And increase the funding for 

Tribal Safety Program to $50 million annually and to improve the 

unsafe road systems on tribal lands. 

Indian country has over 741 public schools and over 82,000 native students. The Bureau of Indian Education serves over 50,000 

students and 181 elementary and secondary schools. Many of these 

schools are located in remote and rural areas. 

The Safe Route to School program provides funds to states to improve the ability for primary/middle school students to safely walk 

and bike to school. Unfortunately BIE schools are not eligible for 

this program. There’s no information on whether public schools in 

Indian country receive anything from the program. 

NCAI is encouraged that Congress is exploring alternate sources 

of revenue for the Highway Trust Fund. Simply put, the system is 

founded on a combination of federal gas taxes and state gas taxes. 

Indian reservation roads have not equitably benefitted from either 

of these sources of revenue. 

Given the dire conditions of reservation roads, it is unconscionable that the Reservation Roads Program does not enjoy parity 

with the amount given to other governments through the Highway 

Trust Fund. NCAI feels strongly that this inequity of distribution 

must be addressed in any system devised to fund transportation 

systems across the nation. 

NCAI is working with tribal governments to improve and build 

upon the successes of the last transportation reauthorization, because transportation infrastructure is vital to the enhancement of 

Indian governments and sovereignty. 

We look forward to working with this Committee on tribal-specific transportation issues. Thank you. 

[The prepared statement of Mr. Keel follows:]

PREPARED STATEMENT OF HON. JEFFERSON KEEL, PRESIDENT, NATIONAL CONGRESS

OF AMERICAN INDIANS (NCAI) 

On behalf of the National Congress of American Indians (NCAI), thank you for 

the opportunity to testify on tribal transportation in Indian Country. NCAI is the 

oldest and largest national organization in the United States and is steadfastly dedicated to protecting the rights of tribal governments to achieve self-determination 

and self-sufficiency. NCAI applauds the Senate Committee on Indian Affairs for examining the tribal transportation infrastructure. NCAI looks forward to working 

16

1 Bureau of Indian Affairs, Transportation Serving Native American Lands: TEA–21 Reauthorization Resource Paper (2003). 2Statement of John Baxtor, Administrator of Federal Lands, FHWA, U.S. DOT, Hearing on 

Transportation issues in Indian Country Before Senate Comm. on Indian Affairs, 110th Cong. 

1 (2007). 

with members of this Committee to enhance investments in infrastructure development such as transportation. 

Indian Reservation Roads comprise over 120,000 miles of public roads with multiple owners, including the Bureau of Indian Affairs, Indian tribes, states and counties. Indian Reservation Roads are the most underdeveloped road network in the nation 1—yet it is the primary transportation system for all residents of and visitors 

to American Indian and Alaska Native communities. Over 66 percent of the system 

is unimproved earth and gravel. Approximately 24 percent of Indian Reservation 

Roads Program (IRR) bridges are classified as deficient. These conditions make it 

very difficult for residents of tribal communities to travel to hospitals, stores, 

schools, and employment centers. 2

In 2005, the enactment of the Safe, Accountable, Flexible, Efficient Transportation 

Equity Act: A Legacy for Users (SAFETEA–LU), Public Law 109–59, authorized the 

U.S. Department of Transportation (USDOT) to administer and distribute billions 

of dollars of highway, transit and other transportation-related funding to federal, 

Tribal, state and local transportation departments. Included in SAFETEA–LU were 

several significant tribal provisions: providing an increase in funding for Indian Reservation Roads Program; creating a new specific funding set-aside to address the 

condition of bridges on tribal lands; initiating a new tribally-specific transit program 

that would provide much needed funding for tribes; and establishing within the office of the Transportation Secretary, a Deputy Assistant Secretary for Tribal Government Affairs to plan, coordinate, and implement the Department of Transportation policy and programs. In addition, SAFETEA–LU provided important changes 

in the IRR program. IRR funding can now be provided through a funding agreement 

in accordance with the Indian Self-Determination and Education Assistance Act as 

long as the requesting tribal government has satisfactorily demonstrated financial 

stability and financial management to the Secretary of Transportation. 

Transportation infrastructure development is critical to economic development, 

creating jobs, and improving living conditions for individuals and families in Indian 

Country. Construction of transportation systems that allows for safe travel and promotes economic expansion will help us strengthen our tribal communities while at 

the same time making valuable contributions to much of rural America. Surface 

transportation in Indian Country involves thousands of miles of roads, bridges, and 

highways. It connects and serves both tribal and non-tribal communities. 

Funding 

In SAFETEA–LU, tribal transportation programs within the Department of 

Transportation have received the following funding levels. Funding for the Indian 

Reservation Roads Program (IRR) was $300,000,000 for Fiscal Year 2005, and steadily increased each fiscal year to $450,000,000 for Fiscal Year 2009; funding for the 

IRR Bridge Program stayed at $14 million for Fiscal Years 2005 through 2009; Public Transportation on Indian Reservations Section 5311(c), was funded at $8,000,000 

for Fiscal Year 2006, and gradually increased each fiscal year to $15,000,00 for Fiscal Year 2009. These funding levels were maintained in FY 2010 for tribal transportation programs through DOT. 

Indian Reservation Roads Program 

The officials at the Departments of Interior and Transportation have recognized 

that transportation systems within Indian Country are suffering from a nearly $40 

billion construction backlog. An equaling distressing deferred maintenance backlog 

exists for Tribal transportation facilities. Rising construction inflation rates continue 

to diminish the purchasing power of the limited federal funds currently provided to 

the IRR Program and other Tribal transportation programs. Even solid Tribal roads 

and bridges fall into disrepair and require costly reconstruction years before the end 

of their design life due to a lack of more cost-effective maintenance funding. Under 

any assessment, Tribal transportation programs remain severely underfunded and 

the construction and maintenance funding backlog will only get worse without significant funding increases during the next highway reauthorization period. 

To address the deficiencies of road construction and maintenance in the upcoming 

reauthorization, we encourage this Committee to recommend to Congress an increase in the funding level for IRR Program to $800,000,000 for Fiscal Year 2013; 

$850,000,000 for Fiscal Year 2014; $900,000,000 for Fiscal Year 2015; $950,000,000 

17

3Fatal Motor Vehicle Crashes on Indian Reservations, 1975–2002, April 2004, DOT HS 809 

727, U.S. Department of Transportation, National Highway Traffic Safety Administration, 

for Fiscal Year 2016; $1,000,000,000 for Fiscal Year 2017; and $1,050,000,000 for 

Fiscal Year 2018. For the IRR Bridge Program, NCAI recommends $75,000,000 for 

Fiscal Year 2013; $87,500,000 for Fiscal Year 2014; $100,000,000 for Fiscal Year 

2015; $100,000,000 for Fiscal Year 2016; $100,000,000 for Fiscal Year 2017; and 

$100,000,000 for Fiscal Year 2018. 

Public Transportation on Indian Reservations 

Since the enactment of SAFETEA–LU, the Transportation on Indian Reservations 

Section 5311(c), also known as the Tribal Transit Program, has been very successful. 

In the first year of operation, 63 tribes were awarded transit funding. This program 

brings severely needed transit services to Indian Country so that tribes can provide 

much needed transportation access to employment, health services, education, and 

business opportunities for tribal members. 

While tribal transit systems continue to develop and thrive, the funding authorized in SAFETEA–LU barely addresses the transit needs in Indian Country and 

tribal governments need additional funding to adequately address the transit services in Indian Country. NCAI recommends funding for the Tribal Transit Grant Program to be increased to $35 million for Fiscal Year 2013 with continuing increases 

of $10 million for every year thereafter to $85 million. NCAI also recommends raising the cap for Transit Planning Grants to $50,000. Currently, tribes are capped at 

$25,000 to use for planning and design. This cap is a hindrance for tribes who do 

not possess the financial resources to initially establish a reliable transit system on 

their tribal land. SAFETEA–LU allowed Indian tribes to pursue improved public 

transportation for their tribal communities, however there continues to be significant need in Indian Country. 

Tribal Technical Assistance Program (TTAP) 

The TTAPs are the only technical assistance program that provides much needed 

education, research, and training to tribal governments. There are currently 7 TTAP 

centers located around the country that serve all the tribes in different regions. 

TTAP is funded by both the Federal Highway Administration (FHWA) and Bureau 

of Indian Affairs (BIA). Currently, each TTAP receives $280,000 a year in total 

funding, which is comprised of $140,000 from the Local Technical Assistance Program and $140,000 from the IRR program. This totals about $1.9 million for the 

overall TTAP funding each fiscal year to serve all 565 federally-recognized tribes. 

To ensure that the TTAPs are able to meet the increased demand for their services as additional tribes assume responsibility for administering their transportation 

programs, NCAI recommends Congress to have the Department of Transportation 

institute a TTAP for each of the twelve BIA Regions. Additionally, NCAI recommends an increase to the overall funding of TTAPs from $1.9 million to $4.2 million each fiscal year. This much needed funding will assist each TTAP center to adequately address the increasing need for transportation technical assistances. 

Safety 

State governments spend between $4,000 and $5,000 per road mile on maintaining state roads and highways. While in Indian Country, by contrast, road maintenance funding is less than $500 spent per road mile. Indian Country has an unmet 

immediate need of well over $258 million in maintenance funding for roads and 

bridges, and $310 million in unmet need for new roads and bridges projects. 

Tribal members and communities are threatened by unsafe and often inaccessible 

roads, bridges and ferries. Indian people suffer from injury and death by driving and 

walking along reservation roadways at rates far above the national average. Data 

shows 5,962 fatal motor vehicle crashes were reported on Indian reservation roads 

between 1975 and 2002 with 7,093 lives lost. 3 The trend is on the increase, up nearly 25 percent to over 284 lives lost per year in the last five years of study. While 

the number of fatal crashes in the nation during the study period declined 2.2 percent, the number of fatal motor vehicle crashes per year on Indian reservations increased 52.5 percent. American Indians also have the highest rates of pedestrian injury and death per capita of any racial or ethnic group in the United States. 

Tribal communities share many similar concerns and obstacles as rural communities in addressing how to improve the safety needs. NCAI has worked diligently 

with tribal governments to find solutions for improving the safety and infrastructure 

of Indian Country. Presently, tribes receive a two-percent set aside of the total allocation from the National Highway Traffic Safety Administration; the funding is then 

allocated to BIA where the BIA Highway Indian Safety Program administers the 

18

4Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. 

L. 109–59, § 1404, 119 Stat. 1228, 86–88 (2005) 5 IES National Center for Educational Statistical Common Core of Data, Public and BIE elementary and secondary schools: number of schools and enrollment in the American Indian and 

Alaska Native Areas, 2005–2006 and 2007–2008, Table 1, (2010), http://nces.ed.gov/ccd/tables/

ccd07laialschools.asp 6 Bureau of Indian Affairs, Transportation Serving Native American Lands: TEA–21 Reauthorization Resource Paper (2003) (attached). 

programs. The purpose of this program is to assist tribes with their proposed highway safety projects, which are intended to reduce traffic crashes and impaired driving crashes; increase occupant protection education; provide emergency medical 

service training; and increase police traffic services. The two percent set aside is 

equivalent to $14 million annually, and it is a competitive grant process. NCAI has 

received concerns from tribal leaders about the inadequate effectiveness of the BIA 

Highway Indian Safety Program. In the past, there has been turnover of the directorship of the office and lack of guidance and support to tribes. For example, tribes 

have been denied the grant funding but they were not informed of the reasons for 

the denial, and tribes have contacted the office, and no one seems to be returning 

their phone calls. 

NCAI recommends Congress assist in confronting the high injury and fatalities 

on tribal roadways and to resolve the concerns about the BIA Highway Indian Safety Program by establishing a 2 percent Tribal funding set-aside within the High 

Risk Rural Roads Program, and create a new Tribal Traffic Safety Program within 

the FHWA-Federal Lands Highways office and within NHTSA, each funded at $50 

million annually to dramatically reduce the incidence of death and injury on America’s Indian reservation roads. The creation of these new programs would help to 

reduce the safety and behavioral problems that contribute to the high rates of death 

and injury on Indian reservation roads. 

Safe Route to School 

The Safe Route to School Program 4 was created under SAFETEA–LU within the 

FHWA and is administered by State Departments of Transportation. Each State has 

its own administering guidelines for applying for Safe Routes to School program. 

This program received a total of $612 million for the fiscal years of 2005 to 2009, 

and each State funding is formula based. The Safe Routes to School Program essentially provides funds to States to improve the ability for primary and middle school 

students to safely walk and bike to school. Furthermore, the program assists schools 

within a two-mile square radius, to plan, develop, and implement safety projects 

and activities to reduce traffic and fuel consumption; and encourage active lifestyles. 

There are over 741 public schools located in American Indian and Alaskan Natives areas, with a total of 82,406 native students; and the Bureau of Indian Education serves approximately 50,155 native students at 181 elementary and secondary schools. 5 Many of these schools are located in remote and rural areas, where 

students have to be bused for more than 50 miles. 

NCAI is supportive of programs that promote safety and active healthy lifestyles 

of school students. However, NCAI is concerned about the inability to know the 

number of schools on tribal lands who have successfully applied and been awarded 

funding under the Safe Route to School program. Since each State Transportation 

Departments and their coordinators administered the program, it is difficult to determine who and how many public schools on Indian reservations have benefited 

from this program. In addition, the Bureau of Indian Education (BIE) schools are 

not eligible to receive this funding. 

NCAI recommends this Committee consider amending the statutory language of 

the Safe Route School Program to enable BIE schools to be eligible to receive funding; to create a tribal set-aside for public, bureau, charter, impact-aid and grant 

schools on tribal lands to be able to participate in this program; and to increase two 

mile radius requirement. Naturally, this produces additional questions on the issue 

of who would administer this program for these schools, and the amount of funding. 

NCAI looks forward to working with this Committee on this matter. 

Gas Excise Tax 

To date, there are over 120,000 miles in the Indian Reservation Roads (IRR) system but yet it is the most underdeveloped road network in the nation, 6 and it is 

the primary transportation system for all residents of and visitors to American Indian and Alaska Native communities. Over two-thirds of the roads on the system 

are unimproved dirt or gravel roads, and less than 12 percent of IRR roads are 

19

7 Id.

8 Id.

9 National Center for Statistics and Analysis, Fatal Motor Vehicle Crashes on Indian Reservations: 1975–2002, (2004) 10 BIA Paper, supra note 1. 11 U.S. Dept. of Transportation, Federal Highway Administration, TEA–21, A Summary 

(1998). 12 Brief of Amicus Curiae the Inter-tribal Transportation Association in Wagnon v. Prairie 

Band of Potawatomi, available at http://www.narf.org/sct/richardsvpbp/

ITA%20amicus%20final.pdf. 13 Id.

rated as good. 7 The condition of IRR bridges is equally troubling. Over 25 percent 

of bridges on the system are structurally deficient. 8

Tribal economies, education systems, health care and social service programs are 

threatened by unsafe and often inaccessible roads, bridges and ferries. A recent Federal traffic safety study showed that Indian tribes suffer the highest per capita traffic fatality rate in the Nation, more than four times the national average. 9 Each 

year, drivers on the IRR system travel over 2 billion vehicle miles on a system that 

is a clear health and safety hazard for our communities and an impediment to 

meaningful economic development. 10

Funding for Tribal Transportation Systems 

The current scheme for funding surface transportation in the United States is 

based on a federal-state motor fuel taxation regime that precludes tribes from participating in the system on an equitable basis. While the system of using federal 

fuel tax revenue for road construction and state fuel tax revenue for maintenance 

has worked to dramatically improve roads in many parts of the nation, it has failed 

miserably in Indian Country. 

Like states, Indian tribes receive some funding for road construction from the federal Highway Trust Fund, but the amount given to tribes is much less than what 

states receive. Currently, Indian Reservation Roads make up nearly three percent 

of federal roadways, but they receive less than 0.5 percent of total federal highway 

funding. 11 At the current funding levels, the IRR program receives only about half 

the amount per road mile that states receive. 

The Federal Government also makes some funds available to tribes for IRR maintenance under the BIA Maintenance Program. This Program is also woefully inadequate. The BIA spends less than $1000 per mile for road maintenance, compared 

to estimates of $4000–$5000 per mile used by states to fund non-IRR maintenance. 12 Moreover, the states, who receive federal funding for their own roads that 

fall within reservations, frequently shirk their obligation to improve or maintain 

these roads and instead siphon off the funds for use elsewhere. 13

Faced with a severe inadequacy of funding from federal and state sources, tribal 

governments have looked for other sources of revenue, including levying their own 

motor fuel taxes. While tribes have the same authority as other governments to collect taxes, the ability of tribes to tax fuel on tribal lands has been severely diminished by the Supreme Court. The Court has upheld the authority of the states to 

reach onto tribal land to collect a state motor fuel tax. The dual taxation that would 

result if both states and tribes impose a motor fuel tax makes it impractical for 

tribes to generate revenue through motor fuel taxes. Although some tribes and 

states have been able to negotiate motor fuel tax revenue-sharing agreements, those 

cases are the exception rather than the rule. In most areas, the state governments’ 

collection of motor fuel taxes in Indian country displaces the ability of tribal governments to collect motor fuel taxes. 

NCAI encourages this Committee to explore alternate sources of revenue for reservations roads. Given the dire conditions of reservation roads, it is unconscionable 

that the IRR program does not enjoy parity with the amount given to other governments through the Highway Trust Fund. NCAI feels strongly that this inequity of 

distribution must be addressed in whatever new system is devised to fund transportation systems across the nation. In addition, if motor fuel taxes are to remain the 

primary source of funding for road construction and maintenance, we urge the Committee to recommend that Congress clarify authority of Indian tribes to collect this 

tax on tribal lands. Finally, if the Committee recommends a dramatic change to the 

way revenue is raised for transportation costs, NCAI recommends that any such 

system be devised in a manner that treats Indian tribal governments equitably and 

gives them the same authority as state and local governments to raise revenue to 

fund the costs associated with building and maintaining transportation infrastructure. 

20

Conclusion

NCAI is committed to working with tribal governments to improve and build upon 

the successes of the last authorization of SAFETEA–LU because transportation infrastructure is vital to the enhancement of Indian tribal governments. Strengthening tribal governments and their communities by providing safe and reliable 

transportation infrastructure is essential for communities to prosper.

Senator TESTER. Thank you, Jefferson. We’ll start out with you, 

Larry. You talked about the Question 10 and that you’ve had ten 

consultation sessions, and correct me if I’m wrong, across the U.S. 

Can you give me an idea of where you’ve held them and what kind 

of participation you’ve had. Because tribal consultations are critically important as we move forward and address that issue. 

Mr. ECHO HAWK. Senator Tester, we’ve had ten of those consultations sessions. We tried to make sure they were located in different 

regions to provide tribal officials access. And we presently have 

going about, I think, more than half a dozen different subjects on 

consultations. And I’m not able to attend personally all. I did attend one in Alaska. 

And I’d like LeRoy Gishi maybe to respond to more details about 

how those consultation sessions were carried out. 

Senator TESTER. That would be great. LeRoy. 

Mr. GISHI. Thank you, Senator Tester. 

Yes, we had ten consultation sessions in the 12 regions that are 

associated with the BIA Region offices. And we can provide a list 

of those. Off of my head, I can think of only a few. But we did have 

those. 

Primarily, what we did is the same presentation. So it gave the 

opportunity for tribes to be able to get the same content of what 

is in the presentation and publish the agenda and the presentation 

was published as part of the Federal Register, so that everybody 

had an opportunity to ask questions and also comment. And that 

process will continue as we go through the implementation process. 

Senator TESTER. Couple questions. How much participation? 

Mr. GISHI. We generally got on the average of about 50 to 60 at 

each location with a high of 138 in one of the locations. 

Senator TESTER. Do you have plans to do many more? 

Mr. GISHI. We will continue as a part of the process of this consultation to make sure that meetings like this morning are available where we’re able to come and provide questions. And as the 

process continues, as more information is provided, it will be provided in the consultations. 

Senator TESTER. Okay. And you can continue or you can kick it 

back to Larry. Is there any sort of pattern starting to develop as 

far as the Question 10 as far as solutions for it? 

Mr. GISHI. In general, what we were doing was providing information for the purposes, of course, for the tribes to be able to have 

input into this. As we’ve gone through these ten sessions, we received various comments that are generally everywhere from in 

favor to opposition. That’s part of the process that we’re hoping to 

be able to get. We realize as we go through this, we will continue 

to get more, because for tribes in many cases to provide a final assessment or comment on things, at this point is premature because 

this implementation process has been over a year, and basically 

over the next two years. 

21

Senator TESTER. So maybe I should rephrase the question. Has 

the input been positive towards it, negative towards it, or what has 

the input been towards Question 10? 

Mr. GISHI. In general what we’ve found is that the tribal leaderships have identified and always and certainly reserve the right to 

continue to have comments. But in many cases have indicated that 

they understand that there is a process. That this was referred to 

the leadership of both Indian Affairs and the Federal Highway Administration for the purpose of providing a plan. And for that reason, they were in favor of moving forward with what was there. 

Senator TESTER. Okay. Larry, you talked about the Recovery Act 

briefly in your statement today. You talked about the fact that 

there were hundreds of millions of dollars put out, 99.9 percent. 

And you need to be commended for that as obligated. 

Can you give me an example of some of the projects? Were they 

primarily highway projects, bridge projects? What kind of projects 

are we talking about? And you can pass that over to Michael if you 

want. 

Mr. BLACK. Thanks, Senator. We were able to, through the 

ARRA program, work approximately 400 repair and restoration 

projects, probably about 141 million, which was largely through the 

Road Maintenance Program on bridges and roads. And in addition, 

over 420 projects through the IRR Construction Program and for 

a total of about $225 million. 

It has enabled us to make a big difference out there on our transportation systems. A good example of that would be the Chippewa 

Cree Route 6 project, which was brought to us as a proposed 

project to be funded through ARRA. It had a lot of major safety 

concerns. We were able to reach a distribution process of approximately $1.7 million toward that project. 

Senator TESTER. Overall, do you have any idea of how many jobs 

were either saved or created by those dollars? 

Mr. BLACK. I don’t have that figure. We can provide that to you. 

Senator TESTER. That’d be great. Thank you. 

Last question as it applies to your group, Larry. We will be working on a highway bill reauthorization. It’s been talked about by the 

other panels up here. How do you plan to include tribes and getting 

their perspective as far as that Highway Bill when it comes up? 

Mr. GISHI. Thank you, Senator Tester. The process that we went 

through—The Indian Reservation Road Program and Highway Program, and we will continue to work with not only the Federal 

Lands Highway Program with Mr. Baxter and Mr. Sparrow, but 

also through the administration we have with other agencies’ programs within Interior, including the National Parks Program of the 

National Park Service. And those will come through the Interior 

Department. And certainly in that process we have access to the 

TRIP Act, and we know what tribes are looking at relative to that. 

And those are things that are certainly a big part of what the administration will be looking at. 

Senator TESTER. Well, I have a ton of different tribes, we’re going 

to hear from some folks here in this next panel. And I guess the 

question is, do you have an outreach method that you utilize to 

reach out to tribes in both rural and urban America to make sure 

22

that the Highway Bill meets the needs once we get to the floor of 

the Senate or the Committee? 

Mr. ECHO HAWK. Senator Tester, from my perspective the coordinating committee that we’ve got that represents all regions is a primary conduit that we have for receiving information. And I would 

hope that they would be very active in working with us to make 

sure that we’re receiving guidance. In addition to that, I’d just like 

to assure the Senator that I’m travelling across Indian country, 

going into communities, and it seems like tribes regularly talk to 

me about the transportation needs. So I feel like I have a pretty 

good network of communications with tribal leaders. 

Senator TESTER. Very good. Thank you, Larry. I appreciate that. 

And appreciate both you fellows for being here. John, do you want 

to add to that? John Baxter. 

Mr. BAXTER. I want to add that over the past several months 

Secretary LaHood has had a series of town hall meetings on reauthorization. And as part of that process has invited the tribal community into that discussion and for testimony to be heard throughout that process. So we will continue to have that effective outreach 

with the tribal nations. 

Senator TESTER. Okay. That’s good and as long you’ve got the 

microphone, I’ll just keep going. 

Mr. BAXTER. Sure. 

Senator TESTER. We’ve got the folks and Larry Echo Hawk that 

are doing some outreach obviously. You have methods and you’re 

doing some outreach with Ray LaHood. Do you have the ability to 

gather the information that these guys are gathering when you’re 

working on a proposal? 

Mr. BAXTER. We do. And oftentimes, we’re meeting with them 

and outreaching with them. We certainly have the Indian Reservation Roads coordinating committee as a critical communications 

piece for all of us to utilize. 

Senator TESTER. Good. 

Mr. BAXTER. We have the consultation process that the Department of Transportation recently adopted, which reinforces, I think, 

the outreach effort that we already had in the past. 

But in every effort we have opportunities with senior leadership 

to visit in Indian country and to participate in national conferences. And oftentimes at these conferences we will meet with 

tribal representatives and leadership to hear their issues face-toface, one-on-one, and to get information on that process as well. 

Senator TESTER. Because I think it’s critically important, as you 

can tell by that question, that you have tribal consultations from 

the folks that are living it every day. So that’s important. John, as 

long as you have the mic, one of the first statements you talked 

about in your testimony was that fatality is three times the national average on Indian roads. Can you pick out one or two things 

as to why this is the case? 

Mr. BAXTER. There are a number of reasons the average is higher than you would see elsewhere. Native Americans are over-represented in certain categories of fatalities. There’s a mention of pedestrians as one of those categories. DUI fatalities is another category. Speed fatalities, 35 years and younger. So there are certain 

categories where we know that the Native American population is 

23

over-represented. And that’s why our behavioral programs as well 

as our technical programs are targeted toward those areas where 

we see the greatest need. 

Senator TESTER. Okay. We will get to Jefferson Keel. He has 

some statistics to define that. I’ll get to Jefferson in a second. Have 

you been in on the Question 10 consultations over the summer? 

Mr. BAXTER. Extensively, yes. 

Senator TESTER. What have you learned? 

Mr. BAXTER. Well, I think there’s a couple things we have 

learned about Question 10. One is it’s a complex issue. This has 

been in discussion since I’ve been in my position almost four years 

ago, and it wasn’t resolved at the point through the Indian Reservation Roads Committee, and almost four years later we’re still 

working that issue. So we know there’s a complexity to it. 

We also know there’s a divergence of opinion across Indian country as to what the next step should be. And that’s also been a challenge to work through the issue and facilitate and negotiate that 

issue. 

We know that we need to resolve the issue. We need to move forward beyond Q–10. We are in the midst of looking at reauthorization needs for the next legislative cycle. And the more we’re discussing and debated the Q–10 issue, that takes energy and time 

away from the more important broader concepts that we need to 

look forward towards the reauthorization needs of Indian country 

for the next several years. 

Senator TESTER. Okay. Can you give me your perspective on the 

Recovery Act and what it’s done for Indian roads? 

Mr. BAXTER. I think the Recovery Act is a major success story 

in Indian country. As was already alluded to, we obligated 99.9 

percent of over $310 million of funds that were given to us. 

What we haven’t stated is that’s on top of a program for regular Indian reservation funds program of $450 million. Three years ago 

we had unobligated funds of over $200 million. Now we’ve got that 

down to a very reasonable level from last year to this year. We’ve 

kept that balance down, so the net result is we delivered a $450 

million-plus program, plus $310 million on top of that over the last 

year and a half. That is a tremendous accomplishment for this program, for the tribal nations that participated in the program and 

for the Bureau of Indian Affairs and Federal Highway Administration in delivery of that program. 

So I see it as a major success story. I think what it shows is that 

needs are great and the ability to deliver on the program is great 

as well. And it’s growing. It’s grown since the beginning of 

SAFETEA–LU, $275 million. This year we’ve delivered over $700 

million. So that’s a significant statement. 

Senator TESTER. Yes. Are you familiar with the position, and I 

think I’ve got the name right, Deputy Assistant Secretary of Tribal 

Transportation? 

Mr. BAXTER. Yes. 

Senator TESTER. Can you give me any idea, is that position filled 

at this point in time? 

Mr. BAXTER. It’s not yet. I just checked on it this week, and understand that that position is in process with the White House and 

we expect the selection in the near future. 

24

Senator TESTER. How near is ‘‘near future?’’

Mr. BAXTER. Don’t know. 

Senator TESTER. Well, I would just say that I encourage you to 

fill that position. I think it’s really important as far as conduit 

goes. 

Mr. BAXTER. Absolutely. 

Senator TESTER. Okay. Jefferson, let’s talk about Question 10 for 

a second, because you’re in an interesting position that you do represent urban and rural tribes. Can you just give me your perspective on that fix and if it’s reasonable? 

Mr. KEEL. Senator, in terms of the Question 10, NCAI doesn’t officially take a position. We represent over 250 tribes, and in that 

process there’s going to be winners and losers if there’s a change 

in the formula. 

The official position would be that NCAI believes that any fix 

should be coordinated with tribal leaders. It should be fair and equitable. And as you’ve heard, tribal leaders believe there is a fix 

on the way, and they understand that they’re working through the 

program. But at the same time, there’s a difference and there’s no 

common ground in many areas. 

There are tribal leaders who are very staunchly opposing any fix. 

There are those who believe it should be changed immediately. So 

NCAI’s position is that we will work to coordinate and facilitate 

any of those meetings and work with all of those parties concerned 

to make sure we get to the point where it is equitable and it’s fair 

in how it’s distributed. 

Senator TESTER. Okay. We’ve heard from folks from transportation. We’ve heard from folks from Interior about outreach. Honest 

assessment is—You know, this is an age of cooperation we live in. 

And I think it’s critically important we have collaboration. How has 

the tribal consultation been from your perspective as it applies to 

highways? 

Mr. KEEL. I believe that the consultations, as you’ve heard, have 

been positive. I’m not so sure that we’ve had enough. I know that 

those consultations need to continue. There are often concerns 

about the level of consultations in terms of how the information is 

distributed, how it’s received and the inclusion of the tribal leaders 

in trying to develop a fix. 

In terms of collaboration, I think that it’s very difficult to get 

consensus in every or any region regardless of where those consultations occur. I believe honestly that tribal leaders will agree 

that there needs to be a fix. But I believe there is still going to be 

a process where it’s going to be very difficult to change the formula 

to something that not only is easily understood, because I believe 

that many tribal leaders simply don’t understand how that formula 

is derived and developed. 

Senator TESTER. And for good reason. 

Mr. KEEL. Probably so. Well, historically tribes have never been 

involved in the process. And so I think tribal leaders are now are 

becoming more and more sophisticated and more and more involved, and they’re able to not only acquire or hire or get experts 

to come and assist them, but they’re actually more and more able 

to participate in those developments. And I think that’s a positive. 

25

Senator TESTER. I agree. And I’ll just tell you from my perspective that reaching out, getting input is critically important. I think 

you guys are doing it. I think you need to do more of it and do it 

to the best of your ability. 

It was pointed out to me earlier today at a meeting I was at, and 

that is, the legislative process isn’t such where everybody wins. I 

mean, you go in and negotiate and collaborate and take input and 

you make the best call you can. And that’s the best you can do. 

Jefferson, from your position with NCAI, do you guys have priorities for the next Highway Bill, and if you do, what are they? 

Mr. KEEL. Well, again we would ask that there be a 2 percent 

set aside for the safety program. I think I outlined in my oral testimony what some of those priorities were. We would ask that the 

tribes receive some of the equitable funding from the federal and 

state gas taxes, how that highway trust fund is developed and how 

it’s distributed. 

Senator TESTER. Okay. Last thing, and then we’ll move on. In 

your testimony you put forth some information that said fatalities 

throughout the country were decreasing at 2.2 percent and increasing in Indian country by 52 percent. That’s a stunning statistic. 

First question is, what period was that gauged over, number one? 

And number two, why? 

Mr. KEEL. The period was actually from 2000—Those are 2007 

numbers. 

I believe that there’s $14 million set aside for the Tribal Safety 

Program. That’s a competitive process. Many times tribes have to 

apply for grants. Many times tribes aren’t able to apply for those 

grants in a timely fashion, therefore they don’t receive the funding. 

Oftentimes when tribes don’t receive the grant and they call to find 

out why, they don’t receive an adequate answer. That’s not the reason why fatalities increased. That’s the reason we don’t get technical assistance to help us plan better and utilize the systems that 

we have within. 

Senator TESTER. Okay. Well, thank you very much. I want to 

thank all the folks that were on this panel. I very much appreciate 

it. Thank you very much for being here. 

Now, we’ll have the next panel come up. We’re going to do this 

transition real quick. 

Thank you all very much. The next panel consists of the Honorable E.T. Bud Moran who is Chairman of the Confederated Salish 

and Kootenai tribes right here in this neck of the woods, Pablo, 

Montana. 

Beside him we have Mr. James Steele, Jr., Chairman of the Montana-Wyoming Tribal Leaders Council. And that organization is 

headquartered in the town of Billings. 

Beside him we’re going to have Timothy Rosette, who’s Chief of 

the Environmental Health Division of the Chippewa-Cree tribe of 

the Rocky Boy reservation. And there’s Mark Selder. 

And then once again, last but certainly not least, we’ve got John 

Smith, the Director of the Division of Transportation, Eastern Shoshone and Northern Arapaho Tribes in Fort Washakie, Wyoming. 

The same rules apply here. Before I start with Chairman Moran, 

I want to remind you all to restrict your oral comments to five minutes. We will make your complete written statement a part of the 

26

official record. But for your testimony, I’d like your statements to 

be about five minutes. And if you could do that, we’d be forever 

grateful. 

So, Bud, you’re first. 

STATEMENT OF HON. E.T. ‘‘BUD’’ MORAN, CHAIRMAN, 

CONFEDERATED SALISH AND KOOTENAI TRIBES 

Mr. MORAN. Senator Tester, George Waters wanted to be here to 

accompany me. 

Senator TESTER. Absolutely. George Waters is welcome anywhere. 

Mr. MORAN. Senator Tester and distinguished guests, I have submitted a detailed statement for the record and will now summarize 

my testimony. 

It is an honor to be hosting this hearing on our reservation. I’m 

pleased to present this statement representing the position of my 

tribes on transportation issues of the Salish and Kootenai people. 

I ask that you please relay my regards to Committee Chairman 

Dorgan. He’s been a great advocate for the Indian people with his 

pending retirement from the Senate. Please let him know we will 

miss him and wish him the best of luck. 

I also have to send my regards to Senator Barrasso. We have 

also appreciated his support. 

For too long much of the basic infrastructure of almost every Indian reservation in the United States was simply overlooked. The 

things most Americans take for granted are lacking on our homelands. Many do not have decent roads, drinking water, sanitation 

systems or communications. Many do not have broadband or decent 

cell phone coverage. While all of us, and I’m sure every member of 

the U.S. Congress, would like to see Indian people become more 

self sufficient and to raise levels of employment on our reservations, these things are not possible without basic infrastructure. 

Nationally there’s a lacking backlog of about $13 billion for BIA 

road systems and tribal roads to bring existing roads up to adequate design standards. Indian tribes still have the highest vehicle 

and pedestrian fatality rates found anywhere in the country, and 

in a number of areas they are three to four times the national average. 

Beyond the issue of road construction is a profound problem of 

road maintenance. Not only has the Bureau of Indian Affairs road 

maintenance been underfunded but it has been stagnant at a rate 

of $26 million annually for the entire United States for at least two 

decades. This is really a serious problem on the Flathead Reservation, as I am sure it is elsewhere. We have been getting only 

$190,000 a year for road maintenance for the past six years. 

Over the course of the last two years, Senator Dorgan circulated 

a discussion draft known as the TRIP Act. The discussion draft 

contained many provisions that would be tremendously helpful to 

the Indian tribes. And I’ve highlighted some of these sections in my 

written statement. 

I understand the positive nature of many provisions contained in 

the TRIP Act; I would not support it being introduced next year 

without a number of changes. 

27

The Indian reservation road formula is broken. It will gain nothing from the TRIP Act if it is not fixed. Let me give a rather startling example of why I feel this strongly. Prior to the enactment of 

SAFETEA–LU, the national funding level for the Indian reservation roads was $275 million a year. Of that amount the tribes in 

the Rocky Mountain Region, all tribes in Montana and Wyoming 

except Salish-Kootenai who are in the Northwest Region, got $20 

million. 

With the increase authorization in SAFETEA–LU, the national 

funding level for Indian reservation roads increased to 450 million. 

After that significant national increase, the Rocky Mountain 

Tribes’ total allocation was 19 million. Yes, with 175 million national increase, the Rocky Mountain Region lost money. This is the 

region with most of the largest reservations and the most miles of 

roads of any in the country. 

On the Flathead Indian Reservation in 2006, we received 1.3 million from the formula. In 2010 we will likely be receiving only 

750,000 for a 1.3 million reservation. 

I don’t understand how this is possible or how the BIA has not 

put an immediate halt to this drain of money from Tribal and BIA 

roads. This is because the Indian Reservation Roads Inventory is 

being unethically and improperly manipulated by tribes and states 

that have learned how to game the system by adding thousands of 

miles of roads to the inventory. This needs to stop and it should 

stop today. 

It does not require an act of Congress or even a new regulation. 

It simply requires the BIA to stop pretending this is not a crisis 

and to stop allowing the Indian Reservation Roads Inventory System to be manipulated. 

So while there are Indian people on the reservations who can’t 

get to their jobs or their schools or to the hospital due to impassable roads, we have a situation where BIA roads funds are being 

used to supplant a state’s responsibility for its own interstate highway system. A system and a road for which the state undoubtedly 

receives Federal Highway Trust Funds. 

Mr. Chairman, my submitted testimony also discusses an Interior Inspector General’s report that found major inaccuracies in 

BIA road inventory and its claimed increases in roads in the inventory. My testimony discusses roads that are proposed to be constructed in areas that will never allow such construction. These 

discrepancies cannot be ignored and should not continue. 

In conclusion, I want to again thank the Committee and Senator 

Tester for convening this hearing. Transportation directly affects 

health, safety, and economic matters including jobs and the ability 

to attract businesses. Safe roads allow us to remain connected as 

a tribal people. I want to thank you. And we will continue our support of positive changes to the Indian Reservation Road System. 

And we will keep current. 

[The prepared statement of Mr. Moran follows:]

PREPARED STATEMENT OF HON. E.T.‘‘BUD’’ MORAN, CHAIRMAN, CONFEDERATED

SALISH AND KOOTENAI TRIBES

Senator Tester and distinguished guests; as I said in my welcoming statement, 

it is an honor to be hosting this hearing on our Reservation and I am pleased to 

28

present this statement representing the position of my Tribes on transportation concerns and priorities of the Salish and Kootenai people. I ask that you please relay 

my regards to Committee Chairman Dorgan. He has been a great advocate for the 

Indian people and with his pending retirement from the Senate, please let him 

know that we will miss him and we wish him the best of luck in whatever venture 

he decides to pursue. I also ask that you send my regards to Senator Barrasso of 

Wyoming, the Ranking Member on this Committee. We have also appreciated his 

advocacy and understanding of our issues. 

Let me start by stating that for far too long much of the basic infrastructure of 

almost every Indian Reservation in the United States was simply overlooked. The 

things that most Americans take for granted often are lacking on our homelands. 

Many do not have decent roads, drinking water and sanitation systems, or communications. Many do not have broadband or decent cell phone coverage. While all of 

us—and I am sure every member of the U.S. Congress—would like to see the Indian 

people become more self sufficient and to raise levels of employment on our Reservations those things often are just not possible without basic infrastructure. I am always glad when Congress enacts legislation that might, for instance, include tax 

breaks or accelerated depreciation for businesses that locate on Indian reservations, 

however the truth is that you can enact tax breaks all day long but until we can 

ensure a business that they will have access to good infrastructure, none of them 

are likely to chose to build a business on reservation lands. You have probably 

heard the old story about a tourist out west who pulls into gas station and asks 

where the local Indian reservation starts. The answer is ‘‘the reservation starts 

where the highway ends.’’ For many decades that was not just a joke but a pretty 

accurate portrayal of the roads in Indian County. Now things have gotten better, 

particularly on the Flathead Reservation but there are still many roads here—and 

it is worse on most other Indian reservations—where the roads are severely substandard. The FY 2009 Indian Reservation Roads Program Relative Needs Distribution Factors Report found a backlog of $13 billion for BIA system and Tribal roads 

to bring existing roads up to adequate design standards. Indian tribes still have the 

highest vehicle and pedestrian fatality rates found anywhere in the country and in 

a number of areas are three to four times the national average. The leading cause 

of death in many Indian communities is fatal car crashes and much of that is related to road conditions including both design and lack of maintenance. The problem 

is worsened when a responding ambulance (when there even is one), has to deal 

with the same roads and is delayed in its response. There are many studies showing 

the extent to which reservation roads are underfunded and poorly maintained when 

compared to comparable roads in off-reservation communities and urban areas. The $310 million included in the American Recovery and Reinvestment Act for Indian reservation roads was most appreciated and we thank President Obama and 

the Congress for enacting that bill. We were able to address some of our backlog 

of needed road repair and in so doing created much needed employment. We also 

were able to use ARRA funds for a bus transit project we’ve worked on together 

with the State of Montana. 

Beyond the issue of road construction is a profound problem throughout all of Indian country relative to road maintenance. Not only has the Bureau of Indian Affairs (BIA) road maintenance program been underfunded but it has been stagnant 

at a rate of $26 million annually for the entire United States for at least two decades. This is really a serious problem on the Flathead Reservation as I am sure it 

is elsewhere. We have been getting only $190,000 a year for maintenance for the 

past six years. When some of earlier highway bills such as TEA–21 were enacted 

that included construction money from the Department of Transportation for Indian 

Country there was an understanding that those funds would supplement the budget 

of the Transportation Office of the Bureau of Indian Affairs, that the BIA would not 

be allowed to use new DOT funding to supplant existing BIA roads funds and that 

the BIA would continue to be primarily responsible for maintenance. The BIA did 

not live up to its end of that bargain and now, due to the totally unrealistic funding 

for maintenance from the Bureau, tribes had to secure a provision in the 

SAFETEA–LU bill of 2005 allowing them to reprogram up to 25 percent of their 

road construction money for maintenance. That legislation included language directing the BIA to continue to be primarily responsible for maintenance but as you can 

see from the stagnant $26 million figure, the BIA, no doubt with pressure from 

OMB, has shirked that responsibility. So as a result, not only are roads in Indian 

County dangerous due to lack of maintenance but they fall apart more quickly and 

then have to be rebuilt at far greater costs than if they had been maintained and 

resurfaced. 

This year Congress was not able to enact a Highway Bill and the present program 

is funded only through the end of calendar year. We certainly hope it will be exVerDate 0ct 09 2002 13:18 Mar 22, 2011 Jkt 065034 PO 00000 Frm 00032 Fmt 6633 Sfmt 6621 S:\DOCS\65034.TXT JACK
29

tended and that during the next Congress you will enact a Highway Reauthorization 

Bill. It is critical that such a bill includes a major Indian title, as has been the case 

for at least the last three Highway Authorization bills, and that you include Indian 

tribes throughout as much of the bill as is possible ensuring that we can access all 

appropriate programs. Over the course of the last two years Senator Dorgan circulated a discussion draft which was a comprehensive amendment to SAFETEA–

LU known as the Tribal Reauthorization of Indian Programs or simply the TRIP 

Act. The discussion draft contained many provisions that would be tremendously 

helpful to Indian tribes including increased appropriations for the Indian Reservation Road (IRR) program to $800 million with stepped increases that would take the 

program to $1 billion annually by FY 2015. It included significant increases for the 

Tribal Transit Program and the Tribal Bridge Program and established a Reservation Safety Program. It ensured increases in reservation road maintenance funding; 

allowed tribal access to other Federal programs and allows utilization of the Indian 

Self Determination Act as a vehicle for directly accessing DOT funds. Beyond these 

positive provisions that were in the TRIP Act there are various additional provisions 

we would like to see in the next highway bill. We support the increases proposed 

for transit and as stated above we used some ARRA funding to upgrade and purchase transit equipment but that money came through the State of Montana and 

they require matching funds on our part to operate the buses, so we hope there can 

be some money dedicated to tribal transit services in addition to equipment. 

Somehow there also needs to be a requirement for counties and states to coordinate with tribes relative to roads that cross reservations where there are varying 

governmental entities, state, tribes and counties that might have jurisdiction over 

a the same but at various points along that road. We can’t have one entity maintaining a road for a two mile stretch and then have a different entity ignore that 

same road in the next two mile segment. All transportation agencies need funding 

but there needs to be some direction for coordinating. Perhaps with the acceptance 

of Federal funds would require a commitment for coordination and an annual report 

describing that coordination. 

Senator Tester, while I hope that you introduce the TRIP Act early next year, and 

while I understand the positive nature of many of the provisions contained in the 

conceptual Dorgan draft, I would not support your actions in introducing it if you 

did not first make a number of key changes. The IRR formula that the BIA is using, 

and that the Federal Land Highway Office is supporting, is now broken and we will 

gain nothing from the TRIP Act if you don’t fix it. Let me give a rather startling 

example of why I feel this strongly.

Prior to the enactment of SAFETEA–LU, the national funding level for the IRR 

was $275 million a year. Of that amount the Tribes in the Rocky Mountain Region (all tribes in Montana and Wyoming, except CSKT who are in the NW Region), got $20 million. With the increased authorization in SAFETEA–LU the 

national funding level for the IRR increased to $450 million. After that significant national increase the Rocky Mountain Tribes total allocation was $19 million. Yes, with a $175 million national increase, the Rocky Mountain Region 

tribes lost money! This is the region with some of the largest reservations and 

the most miles of roads of any in the country. On the Flathead Indian Reservation in 2006 we received $1.3 million from the formula. In 2010 we will likely 

be receiving only about $750,000 for a 1.3 million acre reservation. I don’t understand how this is possible or how the BIA has not put an immediate halt 

to this drain of money from Tribal and BIA lands. This is because the IRR Inventory is being unethically and improperly manipulated by tribes and states 

that have learned how to game the system by adding thousands of miles to IRR 

Road Inventory for roads that should not qualify to be on such a list. The TRIP 

Act did nothing to change that. Senator, if this is not corrected and if the next 

Highway Authorization bill did manage to increase the funding level for the 

IRR to $800 million, the tribes in Montana and Wyoming might end up going 

down to a $15 million share! This needs to stop and it should stop today. It does 

not require an act of congress or even new regulations. It simply requires the 

BIA to stop pretending this is not a crisis and to stop allowing the IRR Inventory system to be manipulated. Despite contentions to the contrary the changes 

they are suggesting in Question 10 of the IRR formula will not fix this problem. 

The Question 10 changes contain some improvements but nowhere near enough.

In 2006, 76 percent of the roads generating share in the BIA’s nationwide Road 

Inventory were Tribal or BIA roads. Certainly these are the roads the program is 

intended for. That is why it is called the ‘‘Indian Reservation Road’’ program (emphasis added). This program is intended to construct, repair and maintain roads on 

Indian reservations and traveled by the Indian people who live on those reservaVerDate 0ct 09 2002 13:18 Mar 22, 2011 Jkt 065034 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 S:\DOCS\65034.TXT JACK
30

tions. These roads are on lands that the United States holds in trust and the program is a part of Federal governments fiduciary trust responsibility to federally recognized Indian tribes. The injury and death statistics used to justify the program 

certainly come from those on-reservation roads. Yet, in 2010 only 24 percent of the 

roads generating share in the BIA’s nationwide Road Inventory are Tribal or BIA 

roads. Instead of being called the Indian Reservation Road program it should be 

changed to the ‘‘State and County Road Program Being Supplemented by the BIA.’’ 

This is happening because certain tribes are adding thousands of miles of off-reservation state and county roads to their IRR inventories. In 2004 there were 62,000 

miles in the national IRR Inventory. In 2010 there are 126,000 miles on this same 

inventory. So while we have remained stagnant or lost funds during times of large 

appropriations increases, tribes that are gaming the system are doing just the opposite. There is a tribe in Minnesota whose IRR funds went from $700,000 to $7.3 million over the course of two years. A tribe in Oklahoma gave $20 million of IRR funds 

to the state of Oklahoma for Interstate Highway 44, a road that the State of Oklahoma is clearly responsible for. This will apparently help customers get to one of 

this tribe’s numerous casinos. So while there are Indian people on reservations who 

can’t get to their jobs, or their schools or to the hospital due to impassable roads, 

we have a situation where BIA roads fund are being used to supplant a state’s responsibility for its own interstate highway system, a system and a road for which 

that State undoubtedly receives Federal Highway Trust Funds. 

The formula used to allocate IRR funds is known as the Tribal Transportation Allocation Methodology (TTAM). The BIA continues to tell the Congress and the public 

that TTAM was a bi-product of a Negotiated Rulemaking Committee called for in 

the TEA–21 highway bill. What is not discussed is that after that rulemaking committee submitted its work to the BIA, the BIA made some rather substantial 

changes on its own. Those changes resulted in the manipulation of inventory data 

that has skewed the Cost to Construct (CTC) and Vehicle Miles Traveled (VMT) calculations for those tribes located near urban area and high volume highways. 

IRR funds are allocated under formula known as the Relative Need Distribution 

Factor and it has three basic components: (1) Costs to Construct (CTC) (2) Vehicle 

Miles Traveled (VMT) and (3) Population (POP). In addition to on-reservation roads 

the formula allows tribes to include roads that ‘‘access’’ the reservation. Unfortunately, access is not defined. Without a definition the possibilities are endless. Senator, when you are in DC and fly out of Dulles Airport and are heading west on 

I–66 if you kept going far enough and connected to other highways you would eventually ‘‘access’’ an Indian reservation wouldn’t you? Highway 93 crosses our reservation but just south of our reservation and slightly north of Missoula it intersects 

I–90. Should we claim that as accessing our reservation? It gets better. Think if instead of Missoula there was a much larger urban city there, and think of the Vehicle 

Miles Traveled—the VMT part of the formula—on I–90. How many vehicles that 

traveled such a road and that didn’t have a single Indian person inside can be 

claimed? The BIA is allowing tens of thousands of miles of such roads into the inventory including Interstates, National Highway System Roads, State, County and 

Township Roads. Most of these routes do not legitimately provide direct access to 

an Indian Reservation. A tribe in Wisconsin whose total land base is 4,600 acres 

now generates 800,878 Vehicles Miles Traveled on 2,436 miles of claimed roads in 

its inventory. This VMT is greater than the entire VMT for each of five BIA regions 

of the country. 

Lest you think that these are simply the observations of a tribe who has seen 

nothing from the Congressional increases let me quote from a memo by the Interior 

Inspector General who examined this issue in a report entitled ‘‘Department of the 

Interior Roads Programs—The Dangers of Decentralization,’’ dated February 1, 

2010. The IG wrote: ‘‘We found significant inaccuracies in roads inventories that affect the ability of bureaus to identify needs correctly and inefficiencies in the processes that bureaus use to prioritize their needs’’. The report indicated that the BIA 

Roads Program ‘‘lacked sufficient safeguards to adequately detect misuse and mismanagement of funds.’’ The report further indicated that the BIA did not have adequate inventories of its roads and it referenced the large increases in the BIA’s national inventory of roads as being ‘‘unexplained.’’

Another major area of concern that tribes have can be found in the many miles 

of ‘‘proposed’’ roads that have been added to a number of tribes’ inventories. These 

are roads that a tribe would like to build someday so they ask for and get funds 

from the IRR formula for them. The problem is that many of them will never be 

built. We have seen situations where Alaskan Villages are claiming proposed roads 

in wilderness areas or in areas where the terrain is such that 100 German engineers could not build a road. Yet as long as that proposed road remains on a tribe’s 

list it will continue to get funded, year after year after year. There does not appear 

31

to be anything in the BIA’s proposed Question 10 revisions that will change these 

problems. 

When a road is added to a tribe’s inventory it’s pavement condition is supposed 

to be rated as to its actual degree of needed repair and for a paved road, if it gets 

a rating of 60 or less it can generate funding for the paved surface and the aggregate base under the surface at 100 percent. There are untold miles that have been 

added to the inventory that are all rated at exactly 60 which is nearly impossible. 

This means that someone sitting at a desk simply listed the road without a scintilla 

of a field examination. This practice has resulted in thousands of miles of non-BIA 

and non-Tribal roads generating funding at 100 percent with bogus data and at the 

expense of those tribes who choose not to cheat the system. 

What is equally amazing is that after claiming these roads in their inventories, 

these same tribes don’t actually do any work on them. With the exception of the 

Oklahoma tribe that gave that state $20 million for I–44, we have never heard of 

a tribe actually doing work on the thousands of off-reservation miles claimed. They 

simply use the existence of the road to add it to their inventory and then spend it 

on something else, presumably transportation related but not on the claimed road. 

I am not an attorney but I wonder if this practice is not coming very close to being 

fraudulent. Additionally the statutes governing this program indicate that the funds 

are for road ‘‘projects’’ and 23 USC 101(a) defines that term as ‘‘an undertaking to 

construct a particular portion of a highway.’’ It defines ‘‘construction’’ as ‘‘the supervising, inspecting, actual building and incurrence of all costs incidental to the construction or reconstruction of a highway.’’ Senator, if there is no ‘‘project’’ and there 

is no ‘‘construction’’ how are these roads qualifying? 

Continuing with the remarkable situation is the fact that non-tribal and non-BIA 

roads that are added to tribal inventories are supposed to be added at what is 

known as a ‘‘Non-Federal Share’’ of the costs of the project. 23 USC 201(1) says that 

funds appropriated to carry out the Federal lands highway program may be used 

to pay the Non-Federal Share (NFS) of the costs of a project that provides access 

to or is within an Indian reservation. The non-Federal share is normally between 

5 percent to 20 percent yet many of these roads are being funded at 100 percent 

of their costs. The issue of what percentage of costs a tribe should get is discussed 

in Question 10 of 25 CFR Part 170, Subpart C a key part of the IRR formula. On 

February 12, 2009, Senator Jeff Bingaman forwarded a letter from the Navajo Nation to the Interior Department and to Federal Highway Administration. The Chairman of the Navajo Nation’s Transportation Committee was expressing concerns 

similar to what you have heard from me today. Jeff Paniati, the Acting Administrator of the FHWA responded to the Senator on March 25, 2009 and in addressing 

concerns about funding for such non-BIA and non-tribal roads said,

‘‘In the calculation that determines a Tribe’s share of the IRR Program funding, 

data from State routes generates funding only at the local match rate (typically 

10 to 20 percent of their generated total.) ‘‘ [parenthetical included in original]

If Mr. Paniati is correct, there is a major violation of the regulations ongoing as 

there are quite literally thousands of miles of such exact roads being funded at 100 

percent, not 10 to 20 percent. 

The Paniati letter also said that,

‘‘Interstates, although eligible for expenditure of IRR Program funding, are not 

included in the data entered into the distribution formula at all.’’

Again, if Mr. Paniati is correct, there are further ongoing violations of the regulations and laws as there many miles of Interstate highways that tribes are absolutely 

including in their inventories that profoundly affect the distribution formula. How 

else could the tribe in Oklahoma have gotten $20 million that it gave to the state? 

Question 10 ostensibly tells us that two key factors in the IRR formula (Cost to 

Construct, CTC) and the aforementioned VMT, should be computed at the Non-Federal Share for matching funds if the road in question is otherwise eligible for other 

Federal Highway funds unless (see subpart 3) the public authority (i.e. State or 

County) responsible for maintenance of the road in question provides a) a certification of maintenance responsibility and b) a statement that it is unable to provide 

funding for the facility. When States accept Federal Highway funds from the United 

States they are required under 23 USC 116 to certify that they will maintain the 

project that the federal funds were used to construct. If they do not do so the Federal Government may cease all funding for road work in the state. I do not understand how a state that has certified it is responsible for maintaining its roads can 

then turn around with a wink and a nod and tell a tribe that the state does not 

have the money to maintain the road so the tribe can claim it within its inventory. 

When tribes in Montana asked our State Highway Department if they would make 

32

such a statement they indicated that they would not and that they felt they would 

be perjuring themselves if they did. Beyond differing interpretations of the law by 

states, one of the many problems with how the BIA is implementing the formula 

is that it is not even being applied uniformly from one BIA Regional Office to another. Some regions will allow the inclusion of such roads and others will not. 

In conclusion, I want to again thank the Committee and Senator Tester for convening this hearing. Transportation is very important for the Indian people. It directly affects health, safety and economic matters including jobs and the ability to 

attract businesses. We hope that the TRIP Act will be reintroduced next year. If the 

BIA does not thoroughly fix the misapplication of formula by a large number of 

tribes and the widely varying application of the formula that change from one BIA 

Regional office to the next, the Congress will need to do so via amendments to the 

underlying statutes.

Senator TESTER. Well, thank you Chairman Moran. I want to 

thank you for hosting us here today and thank you for your testimony. And we will follow up with some questions after we get done 

with the rest of the presenters. Thank you very much. James 

Steele. 

STATEMENT OF JAMES STEELE, JR., CHAIRMAN, MONTANA–

WYOMING TRIBAL LEADERS COUNCIL 

Mr. STEELE. Thank you, Senator Tester. And I want to thank you 

for responding to our resolution dated August of 2010 requesting 

this hearing on Indian reservation roads. And in my opinion, the 

term Indian Reservation Roads in this current system is not proper 

for this process. 

These roads in my opinion as Chairman of the Montana-Wyoming Tribal Leaders Council, in large part in a lot of the regions 

of the nation are not Indian reservation roads. They are in fact 

other things. They are interstate highways, they are roads that do 

not exist, they are proposed roads, and in our opinion from the 

Montana-Wyoming Tribal Leaders Council, we’re unified. Our region is not split on this issue. We are unified 100 percent in all of 

our member tribes. 

And it is our opinion that this system is broke as chairman 

Moran has stated, it’s broken. We appreciate the hearings and the 

consultations sessions. We appreciate the session that we had last 

fall—I believe it was in California—on this issue. There was not 

consensus. 

But it is our opinion that the BIA has been interpreting data region-by-region in a different manner. And while we vary in manners of interpretation, some regions are allowing roads to be added, 

where other regions would reject the same road in a similar circumstance. Some regions are including interstate highways in clear 

violation of the BIA–DOT guidelines for the IRR program. 

The Montana-Wyoming Tribal Leaders Council has previously 

made its concerns known to the BIA and the Federal Highway Administration regarding the IRR data. So we still express those concerns. And you will hear testimony from Mr. Rossette and John 

Smith on this issue in more detail, but I want to give a general 

background that our tribal leaders and our tribal councils and governments that are part of the Montana-Wyoming Tribal Leaders 

Council are unified. And I take a little bit of exception to President 

Keel’s comment that some regions are not unified. Maybe some are 

not. Ours is. 

33

And so with that, Senator Tester, I appreciate you holding this 

hearing. I appreciate your leadership on the Indian Affairs Committee. And I appreciate you including the Majority/Minority staff 

here and Senator Barrasso’s representative also. 

Senator TESTER. Absolutely, James. Thank you for being here, 

too. I very much appreciate your work. 

Tim Rosette. 

STATEMENT OF TIMOTHY W. ROSETTE, SR., CHIEF,

ENVIRONMENTAL HEALTH DIVISION, CHIPPEWA CREE 

TRIBE, ROCKY BOY RESERVATION 

Mr. ROSETTE. Thank you, Senator Tester. I’m having throat problems here, a little congestion. I hope you guys can all hear me. It’s 

never been a problem, me being heard. 

Senator TESTER. First time I’ve heard you. Could you put the mic 

a little closer and it will help your throat and help people hear you, 

too. 

Mr. ROSETTE. Okay. While the SAFETEA–LU provided us a significant increase in IRR funding, we are dismayed that the landbased tribes saw little increases and a lot of times literally lost 

funding because of the misinterpretation, misapplication, whatever 

we want to call it, on controlled implementation on the formula 

that the BIA Federal Highways administers. 

Let me explain why funding decreases to our largest land-based 

tribes in the U.S., why that has happened. Because certain BIA regions allow their road engineers to include all types of roads regardless of ownership, and Federal Highways is doing nothing 

about it since they directly benefit from the off-reservation roadwork being done. By allowing all roads into the BIA Roads Inventory System, the funding becomes diluted to the larger land-based 

tribes of the United States. 

All we have, sir, is all that we have in these rural areas. Every 

statistic that was presented to you today, Senator Tester, that 

came from reservations in Montana, Wyoming, North Dakota, 

South Dakota, all of the land-based reservations. These statistics 

come from them. 

The majority of the money goes to other places. That’s one of the 

bottom line problems with this whole system. And they talk about 

statistics and increases in Indian country. Nobody answers questions directly. I mean, if you ask me a question, I’ll answer you directly. You know me. I will be very direct, sir. 

The reason why deaths have increased on Indian reservations is 

because the funding’s not coming to Indian reservations. That’s 

why the increase. We’re not able to fix our roads like we used to 

be able to fix our roads. We’re not able to maintain our roads like 

we used to be able to maintain our roads. It’s a major, major problem. 

The TRIP Act, you know, to me the TRIP Act is a good start at 

a piece of legislation, but until the problems are fixed within the 

formula, and it’s been mentioned before, and Question 10 is a part 

of that, but there are lot of other things within the formula that 

lead to manipulation and so forth by those who really just try to 

build their inventories just to build their inventories. 

34

Mr. Chairman, IRR funding has been reduced from 76 percent of 

the IRR gross funding to larger rural-based tribes in 2006 to 24 

percent in 2010. This represents a significant loss of critical funding at a time of increases in roads funding. 

The increases are going to tribes in the urban areas that have 

more access roads to their reservation, have more BMTs, their cost 

to construct it considerably higher, and even with the changes presented forth by the Bureau of Indian Affairs with the non-federal 

share, instead of funding them at 100 percent, funding them at the 

non-federal share, it still would be a considerable amount of money 

that would go to those areas. 

Taken out of Mr. Smith’s report, I’d like to read a statement. It 

was reported specifically from the United States Office of the Inspector General, February 1st, 2010. ‘‘We find significant inaccuracies in roads inventories that affect the ability of bureaus to identify needs correctly and inefficiencies in the process that bureaus 

use to prioritize their needs.’’ The report further states, ‘‘All bureaus have project implementation plans and the ability to track 

spending. Two of the bureaus, however, Bureau of Indian Affairs 

and Bureau of Land Management, lack sufficient safeguards to 

adequately detect misuse and mismanagement of funds.’’

As Chairman Moran has pointed out, we believe that there has 

been significant misuse and mismanagement of these programs. 

I’d like to throw a few more statistics at you, Mr. Chairman. 

Motor vehicle injuries are the leading cause of Native American 

deaths from ages 1 to 34. And they’re the third leading cause of 

death in Indian country. 

Mr. Chairman, to date there have been at least two investigations by the Inspector General’s office on the IRR program showing 

negative impacts. The one statement I read directly out of Mr. 

Smith’s testimony, the other was an incident in Alaska. 

I don’t like to just complain. I’d like to propose some solutions. 

I don’t think it takes an act of Congress to fix this problem. I think 

it’s an administration problem. I think administratively this thing 

can be handled. It can’t be handled politely, sir. I know that. And 

I know the politics of this whole thing. When you take money from 

one place and redistribute it to another place, it’s going to be 

daunting for the Senate and everybody involved. And has to be 

done to such a way that—I don’t know. 

But to point out further, we weren’t asked when it was taken 

from us. We were the third largest recipients of Indian reservations 

roads funding prior to SAFETEA–LU. Now we’ve became the 

smallest recipient of Indian reservations roads funds since its implementation. 

Thank you for your time. 

Senator TESTER. I appreciate your testimony. 

[The prepared statement of Mr. Rosette follows:]

PREPARED STATEMENT OF TIMOTHY W. ROSETTE, SR., CHIEF, ENVIRONMENTAL

HEALTH DIVISION, CHIPPEWA CREE TRIBE, ROCKY BOY RESERVATION

I. Introduction 

On behalf of the Chippewa Cree Tribe, I want to express my appreciation to the 

Senate Committee on Indian Affairs, to you Senator Tester and to retiring Committee Chairman Dorgan, for convening today’s hearing concerning Tribal transportation. Thank you for your advocacy on behalf of Indian tribes. With all the other 

35

problems in our country today, transportation needs can easily be overlooked. We 

are grateful that you are taking a leadership role to address the most basic protection that we can afford our members today—safe transportation through our lands. 

The Federal Lands Highway Program and the Indian Reservation Roads Program 

(IRR) provides funding for a coordinated program of public roads that serve Federal 

land transportation needs. The Indian Reservation Roads (IRR) Program is administered cooperatively by the Federal Highway Administration (FHWA), the Bureau of 

Indian Affairs (BIA), and the Indian Tribes that have self-determination contracts 

or self-governance compacts in place for the administration of IRR program functions and funds. The Chippewa Cree Tribe is a self-governance Tribe and we administer most Federal programs formerly administered by the BIA including the IRR 

Program. For most Indian tribes, the IRR program is the sole source of funding 

through which the local Indian communities receive critically needed transportation 

improvements to facilitate better access to jobs, health services, educational opportunities, and economic development. This program is vital to the well being of all 

Native people living on Indian lands throughout the United States 

Over the last five years, as a result of significant increases Congress has provided 

for the Indian Reservation Roads (IRR) Program, some Tribes have achieved many 

successes and improved transportation infrastructure throughout our communities 

and helped educate our members about road safety. The infusion of American Recovery and Reinvestment Act (ARRA) stimulus funds put our Members to work and 

accelerated road and bridge improvements. 

Because of ARRA funding, the Chippewa Cree Tribe was able to seal cracks, chip 

seal, replace fences, and replace traffic signs on approximately 30 miles of BIA system roads as well as providing temporary employment to approximately 40 tribal 

members. 

While SAFETEA–LU provided a significant increase in IRR funding, we are dismayed that the land based tribes saw little increase or lost funding because of the 

misinterpretation and misapplication of the regulations by the BIA and FHWA. The 

IRR program funding formula is an inventory-driven formula. The accuracy of the 

BIA’s Road Inventory field Data System (RIFDS) is paramount to ensuring the integrity of the IRR Program. The misinterpretation and misapplication of the regulations has manifested itself as the uncontrolled implementation of the road inventory 

update process which is used to generate formula shares for all tribes. As a regional 

program, without standardized practices among the BIA Regions the integrity of the 

IRR program has suffered to the point that the IRR inventory has become an ‘‘arms 

race’’ to see who can generate the most funding regardless of who gets harmed by 

the process. This uncontrolled implementation of the inventory continues to go unchecked and is having a devastating effect on Land Based Tribes located in Montana, Wyoming, Arizona, New Mexico, Utah, the Dakotas and some tribes in Minnesota. 

Because of this uncontrolled implementation of the inventory update process, that 

part of the inventory which generates share amounts for the Land Based Tribes has 

been significantly reduced from 76 percent in 2006 to 24 percent in 2010 and is declining at an accelerated rate. My colleague Mr. John Smith will elaborate more on 

the problems we are experiencing with the IRR inventory in his testimony which 

will follow mine. 

The following testimony highlights what the Chippewa Cree Tribe considers to be 

the most critical needs for the IRR program and requests that the Committee consider incorporating them in the new highway reauthorization bill. 

The successes we achieved with our recurring IRR Program funds and ARRA 

stimulus dollars must be sustained by Congress in the next surface transportation 

bill. I ask that you champion transportation issues for Indian country in the 112th 

Congress and introduce the Tribal Reauthorization of Indian Program (TRIP) legislation (including Land Based Tribes suggested revisions), which Indian tribes, the 

National Congress of American Indians (NCAI) and the Inter-Tribal Transportation 

Association (ITA) developed and which this Committee circulated for comment last 

year. Please give Tribes a seat at the table in the next Congress so that the authorizing committees know our needs and see Tribal consensus recommendations to improve our transportation infrastructure. We are anxious to contribute new ideas and 

recommendations to improve that draft legislation, to build on it and on the successes Tribes realized under TEA–21 and SAFETEA–LU. 

As I will detail more fully below, the proposed TRIP legislation:

• increases annual appropriations for the IRR to $800 million annually, with 

stepped increases of $50 million thereafter to grow the IRR Program to just over 

$1.0 billion at the end of the next reauthorization;

36

• increases the Tribal Transit Program to $35 million annually, with stepped increases of $10 million each fiscal year thereafter;

• increases the IRR Bridge Program to $75 million annually, with stepped increases of $12.5 million thereafter;

• establishes two new Tribal Safety Programs (within FHWA and NHTSA) and 

appropriates $50 million annually for each program, to address roadway structural and design safety flaws and driver, passenger, and pedestrian behavioral 

issues;

• authorizes Tribes to expend up to $500,000 annually for road maintenance;

• make Tribes direct recipients of Federal transportation program funds;

• develops and streamlines award instruments between Tribes and federal agencies and between Tribes and the States in a manner similar to the Indian SelfDetermination and Education Assistance Act (ISDEAA), P. L. 93–638, to better 

ensure that Tribes actually receive federal transportation funding.

The backlog of unmet transportation construction needs in Indian Country is in 

the tens of billions of dollars. Many of the jobs, educational opportunities, health 

care and social services for Native Americans are located at considerable distance 

from our Tribal homes and communities. To move closer to these opportunities, we 

would have to move away from our lands and homes, undermining the continuing 

viability of our communities, Tribal sovereignty, and our Native culture. This is unacceptable. 

Despite these limitations, Indian Country has achieved many successes in improving transportation infrastructure throughout our communities in recent years. Many 

of these successes were fostered by the passage of SAFETEA–LU which significantly 

increased program funding, created the Tribal Transit Grant Program, and authorized the Secretary of Transportation to enter into direct agreements with Tribes to 

receive IRR Program funds, Tribal Transit funds and Scenic Byways funds rather 

than requiring Tribes to access these funds through the Bureau of Indian Affairs 

(BIA) or as subrecipients of State Federal-aid funds. 

Tribal transportation successes are threatened unless the next highway reauthorization includes provisions specific to Tribal governments. We realize this is no easy 

task for Congress. But maintaining the status quo of third-world transportation infrastructure in Indian country comes at a terrible price which Congress must consider. 

II. Current State of Transportation in Indian Country 

Indian Tribes have heard a lot about the Administration’s ‘‘livable communities’’ 

initiative to decrease transportation costs, expand affordable housing, and improve 

economic competitiveness. Congress and the Administration need to understand 

that Indian country lacks basic transportation infrastructure to realize those goals. 

Congress must realize that Tribes have the most rudimentary transportation infrastructure in the country, and lack the funds needed to construct even the most basic 

road improvements such as safer intersections, railway crossings, breakdown lanes, 

and basic safety features such as guardrails, rumble strips, stripping, road reflectors, crosswalks, traffic lights and streetlamps. Just as importantly, Tribes lack the 

funds necessary to perform basic routine as well as emergency road maintenance 

to keep our roadways in a safe condition to protect our Members and other motorists. 

Tribal transportation infrastructure still lags far behind transportation infrastructure in the rest of the country—with tragic results. The poor condition of many Tribal roads and bridges jeopardizes the health, safety, security and economic well-being 

of Tribal members and all those who travel through Indian Country. Our inadequate transportation infrastructure hinders every priority of the Federal Government and Tribes which our respective governments have sought to achieve over the 

last few decades—economic development, law enforcement and other first responders, education, health care, and housing—because it raises the cost of doing business 

on reservations and in Indian communities in every aspect of our daily living. 

The unsafe conditions are reflected in our tragic statistics. Indian Country still 

has the highest vehicle and pedestrian fatality rates in the country which in some 

areas are 3–4 times the national average. Motor vehicle injuries are the leading 

cause of death for Native Americans ages 1–34, and the third leading cause of overall for Native Americans. The motor vehicle death rate for Native Americans is 

nearly twice as high as other races. 

Reservation roads also have the highest level of pedestrian fatalities in the country. American Indians have the highest rates of pedestrian injury and death per 

capita of any other racial or ethnic group in the United States. The leading cause 

37

of death for Tribal-members and Alaska Natives between the ages of 10 and 64 is 

a motor vehicle crash. The fourth leading cause of death in these communities is 

pedestrian crashes. 

We are troubled by the disparity between national traffic safety statistics and the 

statistics coming out of Indian Country. The Government Accounting Office (GAO) 

and the US Department of Transportation have published studies that have proven 

that rural roads, especially those serving Tribal communities, experience a much 

higher rate of vehicle accidents and fatalities, but they receive much less federal 

funding than roads serving urban communities. In fact, Indian reservations and 

Tribal communities have the highest rate of vehicle fatalities in the country. While 

traffic fatalities in the rest of the nation have been decreasing, the number of fatal 

crashes in Indian Country has been continually increasing. In the period from 1975–

1979 there were on average 185 fatal crashes on Reservation-based and Tribal roads 

each year, with 231 fatalities. In the period from 1998–2002, the number increased 

by 29.5 percent to 239 crashes per year with 284 fatalities. These statistics are obtained from data collected from on reservation crashes only and should not be used 

to justify adding off reservation facilities to the IRR system. 

III. Roadblocks to Fulfilling the Need in Indian Country 

The number one roadblock to fulfilling the needs in our Tribal communities is lack 

of funding. Too often Congress, the Department of Transportation, and the Department of the Interior ignored their trust responsibility and treaty obligations to the 

Indian nations and Native people to provide safe and efficient transportation systems. While the Department provided $1.275 billion for the High Risk Rural Roads 

Program and $700 million for the Highway Safety Program to State and local governments in FY 2008 to address behavioral and design safety issues, the Department provided less than $5 million per year for all 565 federally recognized Indian 

Tribes (which averages to $8,850/Tribe compared to an average of $40 million/State). 

Tribes had to compete for this wholly insufficient level of funding. After grant development, grant management and other transactional costs are taken into account, 

the few successful Tribal grant recipients typically have only a few thousand dollars 

remaining to begin to address the huge backlog of dangerous road conditions and 

unsafe driver behaviors. Even if considered on a per capita basis, Indian country 

receives pennies on the dollar for their transportation needs. 

We recognize that the nation is going through economic hardship. For most 

Tribes, it is our way of life. We further recognize that the budget will likely be tight 

for the next few years. One way to help fulfill Tribal funding needs for transportation infrastructure without raising the cost to the nation is to provide better access for Tribes to federal-aid highway system and other federal appropriations made 

to State and local governments. The layers of administrative bureaucracy that 

Tribes must go through to gain access to federal transportation funds passed 

through to the States increases our costs and provides us with far less money than 

we need to address our transportation needs. 

Unfortunately, many State and local funding agreements are ill-suited for the 

unique government-to-government relationships that exist between Tribes and 

States and have become obstacles to the award of these much needed funds to 

Tribes. For example, State funding agreements are usually written either as standard commercial procurement contracts or as ‘‘local use’’ agreements designed to 

award funds to counties or municipalities. When these standard agreements are applied to Tribes, they often include broad indemnification provisions, unnecessarily 

broad waivers of sovereign immunity, and provisions imposing State administrative 

and accounting rules on Tribes. Nearly all of these agreements require Tribal governments to appear in State court in the event of a dispute. We are separate sovereign governments—not subdivisions of the States—and these provisions are wholly unacceptable and inappropriate for use in transferring State transportation funds 

to Tribal governments. 

While some State and local governments may be willing to modify funding agreements to accommodate Tribal concerns, negotiating such modifications can be costly 

and time consuming. Most often, State and local governments refuse to modify 

standard agreements to address our concerns. The solution is simple: make Tribes 

eligible direct recipients of federal transportation programs. 

Tribes are also faced with disproportionately burdensome administrative responsibilities that waste our already insufficient transportation funding. For example, 

the finance, procurement and auditing systems of Tribal governments are primarily 

geared toward ensuring compliance with the Indian Self-Determination and Education Assistance Act, P.L. 93–638, grant and contract requirements. It is a waste 

of precious resources for the Department to require Tribes to comply with redundant 

and sometimes conflicting grant and contract requirements. 

38

Also, the lack of access to funds for maintenance requires Tribes to expend a disproportionate amount of funds undertaking large construction projects because of 

the disrepair of reservation roads or bridges. Maintaining transportation infrastructure in a state of good repair extends the useful life of these critical routes. It improves safety at a much lower total cost than the reconstruction of long-neglected 

roads and bridges. When Congress, in SAFETEA–LU, authorized Tribes to spend up 

to 25 percent of their IRR Program dollars for maintenance, it expressly stated that 

the BIA retained the primary responsibility, including annual funding request responsibility, for road maintenance programs on Indian reservations. Congress also 

expressly stated that the Secretary of Transportation must ensure that IRR Program funding be made available for maintenance of Indian reservation roads for 

each fiscal year and that these funds are supplementary to, and not in lieu of, any 

obligation of funds by the BIA for road maintenance on reservations. 

Unfortunately, these Congressional requirements have not been fulfilled. As funding for the IRR Program goes up, the Administration submits budgets to Congress 

to reduce funding for the BIA Road Maintenance Program. Newly built or reconstructed roads must be maintained if they are to meet their design life. Tribes must 

retain the authority to determine whether to expend a portion of its IRR Program 

funds on road maintenance. The agencies have let Indian Country down and not fulfilled their obligations. 

IV. Specific Proposals 

1. Increase Funding for the IRR Program, Road and Bridge Maintenance, and Safety 

and Transit Program in the Next Highway Reauthorization Bill 

The backlog of unmet transportation construction needs in Indian Country is in 

the tens of billions of dollars, and increases by tens of millions of dollars each year. 

The amount of funds provided to Tribes to address these unmet needs does not even 

come close to being adequate. As stated above, if Tribes are to maintain the positive 

gains we have made under TEA–21 and SAFETEA–LU and keep our progress going, 

we request that Congress authorize funding increases in the next highway reauthorization bill for the IRR Program, including road maintenance, Tribal Safety Programs, the Tribal Transit Grant Program, and the IRR Bridge Program. The state 

of infrastructure in Indian country, like anywhere else, determines the health and 

vitality of our economies and of our people. Congress must address the declining status of America’s transportation infrastructure and must include Indian country in 

programs that will improve transportation infrastructure and transit and break 

down barriers between Tribes and surrounding communities. 

I would also like to advocate for additional funding for road maintenance. Tribes 

receive so little road maintenance funding that there is no allowance for emergency 

needs to address life threatening circumstances that result from ‘‘a catastrophic failure or natural disaster.’’ Every BIA Region experiences some form of emergency 

maintenance—ice and snow, traffic control, rock slides, washouts, flooding, wildfires, 

and hazardous waste spills—but lacks the resources to respond to them. 

On average, six cents of every dollar is spent on road maintenance in Indian 

Country. This does not protect the investment that the United States and Tribes 

have made in transportation infrastructure. This funding gap between construction 

and maintenance exacerbates the backlog of unmet construction need by cutting the 

useful life of new built or reconstructed roads in half and will lead to more traffic 

injuries and fatalities. It makes no sense to expend millions of dollars to construct 

a new road if that road is poorly maintained. No one knows the routes through our 

communities better than our Tribal governments. Our Tribal government should be 

authorized to decide what amount should be spent on maintenance—and receive 

adequate federal appropriations—to preserve the lifetime of the road and to protect 

the life and health of its members. 

2. Tribes Must be Eligible Direct Recipients of Federal Transportation Funds 

For these necessary transportation programs to work in Indian communities, the 

funds must reach the intended beneficiaries. Unfortunately, this is not the case. As 

mentioned above, when Tribes are not eligible direct recipients, they must apply for 

State transportation programs funded by the United States. More often than not, 

Tribes do not receive the federal funds awarded to States and local governments. 

This situation exacerbates the history of Tribal exclusion by State and local governments from participating in regional community development planning. 

It has long been recognized that regional planning works best when local government officials are allowed to establish their own priorities and to propose solutions 

that address local problems and needs. Recently, however, Tribal, State, and local 

governments have begun to seek a more collaborative approach to transportation 

challenges faced by their regions. These fledgling efforts make clear that where FedVerDate 0ct 09 2002 13:18 Mar 22, 2011 Jkt 065034 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 S:\DOCS\65034.TXT JACK
39

eral programs provide funding to Tribes directly, State governments are more likely 

to work cooperatively with them. 

Including Tribes as eligible direct recipients in all of the transportation infrastructure grant programs would support the further development of these Tribal, State, 

and local relationships to address community development challenges, and would 

help all governments increase their available funding by making it possible to join 

forces, and funds, with other governmental entities. Such direct funding would also 

significantly cut down on Tribal administrative costs. 

I will say it again: Tribes are separate sovereign governments. Tribal governments have demonstrated that they possess the capacity to deliver successful transportation programs despite the many obstacles that stand in our way. Across the 

country, Tribes are increasingly serving our communities by assuming the Secretary 

of the Interior’s responsibility for administering the IRR Program funds by entering 

into Self-Determination Contracts or Self-Governance Compacts with the Secretary 

of the Interior or by entering into FHWA IRR Program Agreements with the Secretary of Transportation. We are sovereign nations, we are responsible for providing 

basic governmental services to our members, and we are now accustomed to administering funds under these contracts, compacts, and agreements. 

3. Streamline the Grant Award Process by Which Federal Transportation Funds are 

Distributed to Tribes 

Streamlining the grant award process will reduce transactional and administrative costs associated with the award of federal transportation safety grants and will 

leave more funding available to us to do the ‘‘on the ground’’ work needed to provide 

safe transportation infrastructure for our members and guests in our communities. 

We ask that Congress work with the Department of Transportation on the next 

highway reauthorization legislation to develop a uniform set of Tribal grant and 

contract requirements based on the ISDEAA. 

Thank you for allowing me to present this testimony for the record. I hope my 

comments this afternoon will lead to productive action to improve the delivery of 

transportation services to all Indian tribes and correct the anomalies that are having a negative effect to the Land Based Tribes. I will be happy to answer any questions you may have.

Senator TESTER. John Smith. 

STATEMENT OF JOHN P. SMITH, DIRECTOR, DIVISION OF 

TRANSPORTATION, EASTERN SHOSHONE AND NORTHERN 

ARAPAHO TRIBES 

Mr. SMITH. Thank you, Senator. 

Mr. Chairman, I would like to request that you also forward my 

regards and appreciation to Senator Barrasso for being able to represent the great state of Wyoming. Tim calls it Southern Montana. 

It’s easier than Northern Wyoming. 

It’s a great pleasure to have you here and to actually discuss 

with people who can render the completion of this enormous problem. Our tribes here are working under the Indian Reservation 

Road System under two separate rules, Title 23 and Title 25, which 

is complex in tribal members’ thinkings of what the responsibilities 

are when they are both shared equally, not only with the BIA, but 

also with the Federal Highway System and the administration in 

which oversees our road program on behalf of our great—my good 

Crow brother in Washington, D.C.—he was adopted by the Crow 

tribe—and to resolve these issues on his behalf and our behalf. 

When we talk about the $600 billion of need, we need to have 

definitions of need versus greed in the system. We have people putting on inventory items into the Road Inventory System that do not 

properly provide any services to Indian people. But we’re asked in 

the Rocky Mountain Region to sit by and be patient. 

Many of our long-term road projects take four to five years to 

complete, as we develop them in segments. We have to clear earth, 

40

we have to clear the old road bed, put it to the side, widen the road 

to new standards. Our roads are narrow with maybe a foot off the 

road to a two-foot embankment, some places in lengths of 25 feet 

to 50 feet, which is a critical matter. If you go off that road by accident, bad weather, you’re going to roll, sir. That is a honest safety 

situation for our tribes to egress onto medical facilities, emergency 

care, just going to get delivery of goods and services for their people 

back home in their household. Plus, our school children ride over 

those precarious roads. 

During the flood of last year we lost a bridge that got flooded out. 

We had to go for two months to dirt roads to get back onto the road 

situation, other than go 80-mile detour one way and a 95-mile detour to improved roads to get from one end of the reservation to 

the other end of the reservation because our conduit was destroyed 

by the flood. We do now have a temporary bridge in place. And 

we’re not experiencing that condition presently, but it did take a 

toll on what our business could be done. We paved a road on the 

west-half of the river and our gravel sources and our asphalt was 

on the east-half. We had to ensure extra cost to go through the 

town of Lander to deliver asphalt to our roadway in order to get 

it completed, and that road began construction in 2002 in segments. It was a BIA construction project when the tribes began to 

take over our own construction program under the 638 Process. We 

now do operate our road construction program as well as our maintenance program on behalf of the Federal Government. 

We do have safety regulations in place that were put into by the 

tribe. We have a mandatory seatbelt use. We also have limited intoxication for alcoholic beverages to be a 0.5, rather than the 0.8 

like the State of Wyoming, which has greatly curbed our alcohol 

use. And we’ve taken a concentrated effort to curb the driving 

while under influence. 

We participated in Bismarck, North Dakota, along with the other 

states, state transportation Officials from the States of North Dakota, South Dakota, Montana and Wyoming where we asked Mr. 

Secretary to consider funding programs along with road maintenance for increased funding for our programs. We were speaking 

for our needs. We believe that people as we progress along will 

have to come to an agreement of how they’re going to submit inventory items. We were the first region that completed our inventory 

update. We were the first region that completed our IRR profit contracts for the use of those funds. Mr. Rossette here was the first 

tribe in the nation to complete his ARRA projects within one year 

of the same funding cycle. Sadly he lost a lot of that during flood 

season, all his beautiful work, and he’s getting that restored. 

I know I’m running out of time. My council always gets after me 

for talking too much. And so I don’t want to take up any more 

time. But it is a serious need, and we do need help in resolving this 

issue. It’s not going to go away by itself, I’m afraid. Thank you.

PREPARED STATEMENT OF JOHN P. SMITH, DIRECTOR, DIVISION OF TRANSPORTATION, 

EASTERN SHOSHONE AND NORTHERN ARAPAHO TRIBES

Introduction 

Good afternoon, Mr. Chairman and members of this Committee. My name is John 

Smith, Transportation Director for the Shoshone/Arapaho Tribes. I am also a memVerDate 0ct 09 2002 13:18 Mar 22, 2011 Jkt 065034 PO 00000 Frm 00044 Fmt 6633 Sfmt 6621 S:\DOCS\65034.TXT JACK
41

ber of the Indian Reservation Roads Coordinating Committee formed by various Indian Tribes to help shape federal policy and practice in this area. 

On behalf of Joint Business Council Chairmen Ivan Posey and Harvey 

Spoonhunter, and the people they represent who reside on the Wind River Indian 

Reservation in Wyoming, I thank you for this opportunity to provide testimony concerning Transportation Issues in Indian Country. 

The Federal Lands Highway Program and the Indian Reservation Roads Program 

represents for us a major avenue through which the United States Government fulfills its trust responsibilities and honors its obligations to the Eastern Shoshone and 

Northern Arapaho tribes and to other Indian tribes. This program is vital to the 

well being of all Native people living on or near Indian lands throughout the United 

States. Because of its great importance, reform of the Indian Reservation Roads Program has become a top legislative priority for many Indian Tribes. 

Background on the Wind River Indian Reservation 

Compared to other Tribes, the Shoshone/Arapaho Tribes are medium-sized with 

more than 14,500 enrolled members, most whom live on our Reservation. The Wind 

River Indian Reservation is located in a rural area within the boundaries of the 

State of Wyoming. Our Reservation has over 2.2 million acres of tribal land held 

in trust for our Tribes by the United States. While over time it has been diminished 

from its original 3.3 million acres, our Reservation has never been broken apart or 

allotted to individuals and lost to non-Indians. Nor has our Reservation ever been 

subjected to the criminal or civil jurisdiction of the State of Wyoming. Consequently, 

our Tribal Government has a large land area over which our Tribe exercises full 

and exclusive governmental authority and control in conjunction with the United 

States. At the same time, due in part to our location far from centers of population 

and commerce, we have few jobs available on our Reservation. While the unemployment rate in Wyoming is at approximately 11 percent, unemployment on our Reservation remains at an outrageously high level of 85 percent. The lack of adequate 

transportation facilities, communications, and other necessary infrastructure continues to significantly impair economic development and job opportunities. 

Although great strides have been made in improving the IRR program under 

TEA–21 and SAFETEA–LU, several issues have arisen that that are negatively affecting the full implementation of the provisions of these Acts as intended by Congress. 

Transportation Reauthorization of Indian Programs (TRIP) Act 

The Shoshone/Arapaho Tribes are grateful for the leadership role this committee 

has taken to support the Tribal initiatives in the upcoming reauthorization of 

SAFETEA–LU. Under this leadership we are certain that the issues and concerns 

of all tribes will be considered in the reauthorization of SAFETEA–LU. We are 

thankful for the opportunity to comment on the TRIP Act. 

IRR funding serves a crucial need in Indian country. While Congress has increased IRR allocations in recent years, the funding continues to lag far behind an 

even faster-growing need. When BIA officials abuse their powers and arbitrarily divert IRR funds to non-BIA system or non-Tribal facilities, we fall farther behind. 

The Shoshone/Arapaho Tribes has reviewed the provisions of the proposed Reauthorization Bill, published by the Senate Committee on Indian Affairs, to amend the 

SAFETEA–LU, titles 23 and 49, United States Code, and the Indian Self-Determination and Education Assistance Act also cited as the ‘‘Transportation Reauthorization of Indian Programs (Trip) Act’’. 

While we agree with most of the provisions of the proposed TRIP document, we 

disagree with certain items as contained in the proposed Bill and we also find that 

there are many on going issues negatively affecting Land Based Tribes that are not 

addressed in the proposed bill. As such we offer our comments as Follows: 

The proposed TRIP Bill as written does not address the issues and concerns confronting the Land Based Tribes regarding the diversion of Indian Reservation Road 

Program funds meant for the benefit of Indians to non-Indian entities. The percentage of funding generated by non-Reservation facilities is near 80 percent. We are 

concerned that if this trend continues, the IRR Program will cease to exist and 

Tribes will have to access their Road construction funding through the States. 

Of particular concern, we see that the injury and death statistics used in justifying funding increases are taken from statistics on roads actually located on ‘‘Indian Reservations’’. While this is all well and good to document the appalling conditions on Indian Reservations, we are dismayed when we see news articles of Indian 

Tribes giving millions of IRR dollars for construction of Interstate Highways and 

Bridges. We ask how does donating IRR funding for construction of an interstate 

highway address the appalling conditions on Indian Reservations. 

42

We firmly believe that the Indian Reservation Roads Program was established for 

benefit of Indians living on Indian Reservations. This is a Trust Responsibility of 

the Federal Government guaranteed by Treaties between Indian Tribes and the 

Federal Government when Indian Tribes gave up their land and were forced to live 

on Reservations. 

For the past 4 years the Council of Large Land Based Tribes has been attempting 

to correct the misinterpretation and misapplication by the Bureau of Indian Affairs 

(BIA) and the Federal Highway Administration (FHWA) of the recently enacted regulation of the Indian Roads Program as contained in 25 CFR 170. This misinterpretation and misapplication manifests itself as the uncontrolled implementation of 

the road inventory update process which is used to generate formula shares for all 

tribes. This uncontrolled implementation of the inventory continues to go unchecked 

and is having a devastating effect on Land Based Tribes located in Montana, Wyoming, Arizona, New Mexico, Utah, the Dakotas and some tribes in Minnesota. 

Because of this uncontrolled implementation of the inventory update process, that 

part of the inventory which generates share amounts for the Land Based Tribes has 

been significantly reduced from 76 percent in 2006 to 24 percent in 2010 and is declining at an accelerated rate. 

We feel that the following critical issues are the root cause of the rapid decline 

in funding for the Land based Tribes and must be corrected in the Reauthorization 

Bill in order to return this program to what Congress intended it to be. 

Based on the above, the Shoshone/Arapaho Tribes have identified several critical 

items that must be incorporated into a new reauthorization bill in order to make 

25 CFR 170 a useable rule that is not biased against Land Based Tribes constrained 

by reservation boundaries and geographical locations. Those items are as follows:

• Define Access—The current statute and regulation does not define ‘‘access’’ nor 

does it place any limit on to what extent the route can be included in the IRR 

inventory. Because of this ambiguity, the Bureau of Indian Affairs is allowing 

tens of thousands of non-BIA miles or non-Tribal system routes into the IRR 

inventory. These routes include Interstate Highways, National Highway System 

Roads, State, County and Township Roads, Federal Forest Roads, and proposed 

roads. Most of these routes are not located within nor do they provide access 

to Indian or Native lands with some even being located in designated Road less 

and Wild areas.

• Better define the term ‘‘Project’’—the current regulations do not define ‘‘Project’’. 

Most of the non-Federal roads included in the IRR inventory are generating 

funding regardless if it is a project or not. The BIA and FHWA are allowing 

tens of thousands of miles into the IRR Inventory only to generate funding with 

no intention of ever building a project on these facilities.

• Define Relative Need—We believe that the term ‘‘Relative Need’’ is being misinterpreted by certain tribes and the Bureau of Indian Affairs Central Office 

personnel. By allowing thousands of miles of State and County Roads in the 

IRR Inventory (now in excess of 130,000 miles) this does not accurately represent the actual transportation needs of tribes.

How are the needs of a tribe that is located close to Interstate highways, high 

volume US highways or urban areas and surrounded by high volume roads and 

streets that are owned by others relative to the needs of a tribe that is located 

on a remote reservation and whose only source of funding is the IRR program?

Land Based tribes cannot compete with tribes that are located close to urban 

areas and whose needs are being addressed by other public agencies. A concise definition of ‘‘Relative Need’’ is essential in order to ensure the intention and to improve 

the consistency of the methodology applied by each BIA Region.

• Restrict Proposed Roads in the IRR Inventory—Proposed roads are being added 

indiscriminately to the IRR Inventory System. The BIA and FHWA are allowing 

thousands of miles proposed roads into the IRR inventory only to generate huge 

funding amounts. The manner in which the BIA is allowing proposed roads into 

the system is inconsistent whereby certain BIA Regions are allowed into the inventory and other Regions are not.

• Establish an IRR Inventory Oversight Committee—From the uncontrolled and 

indiscriminate manner in which inventory data is being added into the IRR Inventory, (33+ thousand miles in 2004 to 120+ thousand miles in 2009) it is obvious that neither the BIA nor the FHWA are providing any quality control or 

quality assurance of the inventory data that is being used to calculate funding 

for IRR distribution. Or worse, the quality control of the data is disparate or 

discriminating and is not applied consistently across all tribal data. This is evidenced by the fact that Tribes in certain Regions are being allowed to input 

43

fraudulent data only to generate funding. The owing agency has no intentions 

of doing a project on the route, yet the tribe can put it on their inventory and 

generate funding indefinitely.

An Inventory Oversight Committee made up of Tribal Transportation Officials 

must be established to monitor the inventory data that is being submitted. This 

committee will review all inventory data and will decide what data is eligible to be 

included into the official inventory.

Indian Reservation Roads Inventory and Its Impact on Funding 

Under the negotiated rule making process required by TEA–21, Indian Tribes and 

the Federal agencies negotiated new rules (25 CFR 170) by which the IRR program 

would operate. These rules provide the process by which Tribes and the BIA update 

the inventory of roads and bridges on the IRR system. The negotiated rulemaking 

process took four and one half years to complete and it took the BIA another two 

and one half years to publish a final rule. Upon publication of the final rule, we 

were dismayed to discover that the BIA unilaterally left out or changed critical language affecting the inventory that was included in the proposed rule. The BIA has 

never explained why it decided, without consultation or involvement of the Tribes, 

to remove or change regulatory provisions proposed by the tribal negotiation team 

that would improve the integrity of the inventory system. 

It is our understanding that the Indian Reservation Roads Program was established by Congress primarily to fund the construction of roads and bridges on Indian 

reservations due to the fact that these roads and bridges are considered Federal Facilities and it is the Federal Government’s responsibility to construct and maintain 

these facilities on Indian reservations. We believe that the IRR program should primarily address the construction and improvement needs of roads that are located 

within or provide primary access to Indian lands and that are not eligible for other 

Federal, State, or County funding sources. The final rule makes a lot more Federal, 

State and County supported roads eligible for IRR funding, if an Indian Tribe timely 

submits the data information required to place a highway on the IRR inventory system. While Congress and the Administration have substantially increased IRR funding, the number of roads that are eligible for funding has been increased at the 

same time. Some of these roads are eligible for substantial sources of other funding. 

As a result, roads for which the only source of funding is IRR program are receiving 

a smaller slice of the bigger funding pie. 

When Congress enacted Section 1115 (k) of P.L. 105–178 (TEA–21), we believe it 

intended that non-BIA or non-Tribal roads within or accessing an Indian reservation 

were to be included in the Indian Reservation Road Inventory to generate only part 

of the funding needed to improve those roads. Otherwise, the County, State and 

other Federal highway budgets would get a windfall. The law is quite specific: 

‘‘. . . [F]unds authorized to be appropriated to carry out the Federal lands highways 

program under section 204 may be used to pay the non-Federal share of the cost of 

any project that is funded under this title of chapter 53 of title 49 and that provides 

access to or within Federal or Indian lands.’’ 23 USC 120(l). We believe this means 

IRR funds can only be used to pay the non-Federal share on a state or county route 

is if it is project funded under 23 U.S.C. 104 and that it is a designated IRR project. 

The unilateral BIA decision on the final rule favors those tribes who are located 

near urban areas, where transportation needs are the shared responsibility of tribes 

and their neighboring governments and where the Indians are overwhelmingly outnumbered by non-Indian users of these roads. The BIA system for on reservation 

roads has a documented construction backlog of thirteen billion dollars. In the face 

of that need, the BIA’s unilateral final rule has the result of siphoning off scarce 

IRR dollars from areas where the greatest need exists. 

A study conducted by the National Center for Statistics and Analysis (NCSA) and 

sponsored by the National Highway Traffic Safety Administration found that 5,962 

fatal motor vehicle crashes occurred on roads under the jurisdiction of Indian reservations between 1975 and 2002, an average of 213 fatal crashes per year. In 2002, 

the number of crashes on reservations reached a new high of 276, representing a 

4.5 percent increase over the previous recorded high of 264 crashes in 1996 and a 

52.5 percent increase over the 181 crashes in 1975. Over the years, these crashes 

have resulted in the loss of 7,093 lives of which 3,322 were drivers, 2,717 were passengers and 1,001 were pedestrians. 

The objective of the study was to examine the characteristics of fatal motor vehicle crashes that occurred on federal lands, specifically, those lands that have been 

designated as Indian reservations. Using data from 1975–2002 NCSA’s Fatality 

Analysis Reporting System (FARS), Characteristics of these crashes were examined 

to better understand the circumstances that are involved in these particular types 

of crashes. 

44

Roads on Indian reservations are considered Federal roads due to the fact that 

Indian reservations are considered Federal lands and the Federal Government is responsible for constructing and maintaining these roads. State and County roads are 

not considered Federal roads and they have separate funding sources and should 

not be siphoning off critical funding meant for Indian Reservations. To allow the 

hemorrhaging of funds away from Land Based Reservation to continue is a travesty 

and Land Based Tribes will never be able to reduce these tragic statistics. 

Rural Tribes, including large land-based Tribes, have expressed their concerns in 

writing to the BIA and the IRR Coordinating Committee regarding changes to the 

final rule that have altered the intent of the negotiated rulemaking process. To date, 

they have received no responses addressing their concerns. 

Need for a Tribal Transportation Facility Inventory That Is Truly

‘‘Comprehensive’’

The Federal Highway Administration (FHWA) has failed to meet the intent of 

Section 1119(f) of SAFETEA–LU regarding the conduct of a ‘‘comprehensive’’ National Tribal Transportation Facility Inventory. Despite the mandatory nature of 

this statutory requirement, FHWA has decided to conduct merely a ‘‘windshield survey’’ sampling of IRR roads. This approach and methodology falls far short of the 

statutory requirement. We urge the Congress to insist that FHWA complete a ‘‘comprehensive’’ inventory of the IRR system as intended. 

The Land Based and rural tribes continue to lose millions of dollars of IRR funding because the BIA and FHLO are misinterpreting the provisions of SAFETEA–

LU and 25 CFR 170. The mileage of the IRR system has grown from approximately 

62,000 miles in 2004 to over 126,000 miles in 2010. This growth can be directly attributed to the addition of roads that are the responsibility of other public authorities (i.e. States and Counties). It is very apparent that these roads are being added 

to system only to generate funding for a particular tribe with no intention of ever 

constructing these roads. We have verifiable proof that many of these roads are 

being added to the IRR inventory with bogus data. This practice is favoring tribes 

whose lands are located near urban areas with high volume traffic and is harming 

rural tribes with large land bases whose system is comprised mainly of BIA and 

tribal roads. We have tried to correct this problem administratively and have met 

with no success. Critical funding continues to hemorrhage from Land Based reservations and people to those tribes with high volume State and County roads included 

in their IRR inventory. The IRR program has become a state and county roads program. 

This fact has been further substantiated by the United States Department of the 

Interior, Office of the Inspector General’s evaluation report on the Department of 

the Interior roads programs, dated February 1, 2010. That report specifically states 

‘‘We found significant inaccuracies in roads inventories that affect the ability of bureaus to identify needs correctly and inefficiencies in the process that bureaus use to 

prioritize their needs’’. The report further states ‘‘All bureaus have project implementation plans and the ability to track spending. Two of the bureaus, however, Bureau 

of Indian Affairs (BIA) and Bureau of Land Management (BLM), lack sufficient safeguards to adequately detect misuse and mismanagement of funds.’’ Although the 

problems have been identified, it appears that the BIA is ignoring these findings 

and the diversion of critical road construction funding for Land Based Tribes continues. 

The issue remains urgent to land based tribes since we deal with critical on-reservation vehicular transportation needs. Our needs arise from tribal and BIA roads, 

and meeting them relies primarily on IRR funding. The geographic isolation of most 

land based tribes prohibit them from competing in a system of adding Interstates/

NHS highways, State and County roads onto the IRR system just to reap the inflated formula amounts. Also most land based tribes’ priorities are not others’ interstate or state roads, but the very roads they must travel to get the basic medical 

and educational services. On the BIA system alone, there is a documented backlog 

of $13 Billion just to improve the system to a safe and adequate standard. At 

present funding levels, and without further deterioration of the system, it would 

take 28 years to address this need. Allowing State and County roads into the IRR 

system simply to generate funding is siphoning off critical road construction funding 

for tribes whose only source of funding is the IRR program. 

BIA/FHWA Proposed Fix to 25 CFR 170 Question 10

The BIA and the FHWA are proposing an administrative fix to 25 CFR 170 Appendix C to sub-Part C Question 10. Of particular concern to the Shoshone/Arapaho 

Tribes is the Bureau of Indian Affairs and Federal Highway Administration’s interpretation of certain critical items of Question 10 which we feel are flawed and 

45

should be reassessed to ensure that they are interpreted correctly and in accordance 

with the intent of the original regulation as negotiated and agreed to by the Tribes 

and the Federal Government. Of particular concern are the following items:

• The proposed fix fails to correct the problems that are negatively affecting the 

Land Based Tribes in that non-BIA system and non-Tribal facilities will still be 

able to generate funding at 100 percent.

23 USC 120(l) clearly restricts the use of IRR funds to the non-Federal share 

for any project that is funded with section 104 funds of this title or chapter 53 

of title 49.

• The proposed fix will allow local roads and minor collectors to generate IRR 

funding at 100 percent.

23 USC 101(5) clearly indicates that local roads or rural minor collectors are 

not classified as ‘‘Federal Aid Highways’’ therefore are not eligible for federal 

funding. For a non-Federal or non-Tribal road to be eligible to IRR funding, it 

has to be eligible for other Federal funding. (See 25 CFR 170 appendix C to subpart C—question 10).

• The proposed fix will change the process of determining eligibility of non-BIA 

or non-Tribal eligibility form weather it meets the definition of a Federal aid 

highway to determining eligibility by Functional Classification.

It is our understanding that a Federal Regulation can only be changed through 

the negotiated rulemaking process. We find that changing a non-BIA or nonTribal facility’s eligibility from whether it meets the definition of a Federal aid 

highway to determining eligibility by Functional Classification is a major 

change in the regulation. We question the legality in this change as well as the 

matrices for the transition year and the final cannot be implemented as proposed.

• The BIA made significant changes to Question 10 from what was proposed by 

the negotiated rulemaking committee. These changes, although subtle, allowed 

thousands of miles of non-BIA and non-Tribal miles to generate funding at 100 

percent.

The proposed BIA/FHWA administrative fix should not be implemented until all 

of the questions and concerns of Land Based tribes are satisfactorily answered and 

resolved. 

Road Maintenance 

Protection of the investment in any type of infrastructure requires proper maintenance. Historically, the IRR maintenance system has been chronically under-funded 

which has caused safety hazards and premature failure of many roads on the IRR 

system. Roads usually have a 20 year design life but, because of inadequate maintenance, many of the IRR system roads last only about half of their design life and 

have to be reconstructed much sooner. The BIA is responsible for maintaining BIA 

system roads; however the funding BIA provides is approximately 25 percent of 

what is required to properly maintain the system. The IRR maintenance situation 

has become even more critical with the increase of IRR funding through SAFETEA–

LU. While IRR construction funding is increasing, BIA road maintenance funding 

is declining. 

The BIA Road Maintenance Program has been chronically underfunded under the 

U.S. Department of the Interior. This program is included in the Tribal Priority Allocation (TPA) and must compete with other Tribal social programs for funding. The 

funding invested in Road and Bridge Construction on Indian Reservations is being 

compromised due to inadequate maintenance funding. While funding for Road Construction has increased the amount of funding available for Road Maintenance has 

declined. Consequently, roads and bridges constructed on Indian Reservations last 

about half of their design life. The maintenance of these facilities is a Federal responsibility and the health and welfare of Tribal members who have to use these 

roads is at risk on most reservations. 

The BIA receives approximately $25 million per year as part of its lump sum ap- propriation for road maintenance activities. BIA now estimates that $120 million 

per year is actually what is needed to properly maintain roads on the BIA system. 

At present levels, the BIA spends less than $500 in maintenance funding per mile; 

most state transportation departments spend approximately $4,000 to $5,000 per 

mile each year on maintenance of state roads. Of course, states receive highway 

taxes based upon the sale of gasoline within that state. While users of tribal roads 

pay these same state highway fuel taxes, tribal roads receive little or no benefit 

from state fuel taxes. Tribes are unable to impose gas taxes in addition to, or in 

lieu of, those imposed by the surrounding states. 

46

The only practical solution we see for this problem is that since the roads on the 

BIA system are considered Federal roads, the BIA road maintenance program 

should be provided extra funds out of the Highway Trust Fund as are other Federal 

Lands Highway Programs roads. 

It seems inevitable that a gas tax increase will be required to fund the nearly 

bankrupt Highway Trust Fund. If a gas tax is implemented the Shoshone/Arapaho 

would advocate for a portion of the increase (probably a half or one cent) be set 

aside for the Federal Lands Programs and include funding for the BIA road maintenance system out of this amount. 

Conclusion 

On behalf of the Shoshone/Arapaho Joint Business Council, I thank the Committee for its attention to and support for the Indian Reservation Roads program. 

We have attempted to provide the Committee with a few examples of what is happening with the current interpretation by the BIA and FHWA that is having negative impact on the funding for Land Based Tribes. We are confident that with your 

help, the IRR program will be restored to what it was originally intended–building 

and maintaining infrastructure on Indian Lands. Thank you for inviting the Shoshone/Arapaho Tribes to present this testimony. If we can answer any questions, 

now or at some future date, please do not hesitate to ask. 

47

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Senator TESTER. Thank you, John. I appreciate your respect for 

the time. I thank you for your comments. 

Before we get into questions, once again I would just ask if 

you’ve got a comment during our public comment time, raise your 

hand so Virginia can get you. Anybody that’s not on this list, if you 

still want to comment, get ahold of Virginia. 

Let’s go to questions. So I’m going to make the assumption that 

you’ve all been involved with the Q–10 consultations. Fair assumption? 

Mr. STEELE. Yes. 

Senator TESTER. Good. So I’ll just start with you, Chairman 

Moran. What did you learn from the Q–10 consultations? 

Mr. MORAN. The main thing I picked up on that was that the 

funding that’s there is not done in an ethical manner. It’s not done 


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in a sharing that comes from data that’s from an Indian reservation. It comes from data that’s put together there from past 

records, and records sometimes aren’t current. And it’s used accordingly. 

Senator TESTER. Okay. Jim, same question. What’d you learn at 

the Q–10 consultations? 

Mr. STEELE. I think one of things that we’ve learned in this 

whole process, including the Q–10 and other things and other 

meetings, is that one thing for sure is we need some sort of standard quality assurances to submission of the numbers into the data. 

What kind of data is being submitted? Is it accurate? 

And we had a meeting just before you arrived, Senator, on this 

issue, and it was very telling. 

Our region is going by the book. We report on the conditions of 

our roads, and that’s what we submit. There’s regions that submit 

the quality of roads, but it’s not the actual on-the-ground quality 

of those roads. And so that’s troublesome when you have inaccuracies in the Bureau reporting—the people in different regions reporting inaccuracies and entering inaccuracies into the system to 

gain the extra dollar over other regions. That’s not fair, and that’s 

not equitable, and that’s not Indian Reservation Roads. 

And so I would contend, Senator, that we either need to change 

the IRR name to something else. It’s obviously not Indian Reservation Roads. But if we’re going to keep the name IRR, we need to 

put it back the way it was. 

And I would contend once again that if we’re going to keep this 

system the way it is, it’s unfair, inaccuracies being reported and 

not being corrected, then change the name from IRR to something 

else, State Highway Fund or Extra County Fund for their roads. 

But it’s certainly not Indian Reservations Roads. 

Senator TESTER. Thanks, Jim. Tim, what did you learn from the 

Q–10 consultations? 

Mr. ROSETTE. It’s complicated, you know, very complicated. 

There’s a lot of issues out there outstanding. I’ve been doing this 

for over five years, and I’ll tell you, Senator Tester, we’ve been 

writing letters for years and years and years, and I’ll tell you what, 

nobody listens. Nobody cares. I don’t know. Toss them over to the 

side. I don’t know what they do with it. You know, until finally this 

year with Assistant Secretary Echo Hawk. He finally tried to grab 

that bull by the horns. But, you know, it’s a big bull, and he does 

need help. 

Senator TESTER. Okay. John Smith, same question. What have 

you learned from the Q–10 consultations? 

Mr. SMITH. We still have a long way to go in resolving the issues 

that intertwine with Q–10. Q–10 is a conglomerate of various factors that are very technical in nature. 

When you talk about the cost to construct, when you talk about 

vehicle miles traveled, when you talk about the integrity of submission of information, it is very complex. 

I think we need to look at a possible simpler solution that would 

not be quite as ambiguous and be as broad as it is now to narrow 

it down to simple activities, such as population, land base, and 

road miles, rather than VMT. 

62

VMT is a very subjective matter, which comes to vehicle miles 

traveled. We cannot compete here in Montana and Wyoming with 

vehicle miles traveled as they can in a small-acre reservation in, 

say, eastern Washington, which is on I–5. They have an interstate 

and a turn-off into their reservation, and it’s considered an Indian 

road. When you have 28,000 vehicles per day times 365, the VMT 

escalates at an enormous rate. 

We need to have factors that are very essential to Indian reservation way of life and our needs for assistance. We have, in some 

cases, lost tribal members who have called for emergency services, 

which then the ambulance has to come for a maybe 45-minute tour. 

And then they to have a police officer come and verify it is a sound 

accident, which takes time. And then they have to be retrieved and 

put in an ambulance to get to town. That’s more than an hour. 

Most fatalities are considered, effectively, if they’re treated within 

the first hour, the golden hour of life. We don’t have that luxury, 

sir. 

Senator TESTER. Okay. Each one of you represent different entities, and I think you’re fully aware that they’re in the process of 

working on a new Highway Bill coming up this next year. Do you 

have priorities for that bill? 

And we’ll start with you once again, Chairman Moran, if you 

have priorities for the upcoming Highway Bill reauthorization? 

Mr. MORAN. The biggest priority I think would be to get Section 

10 of that bill, rename the bill, get Section 10 into an accurate distribution-type formula so that the way the funds are going to be 

distributed, are distributed equally. To ensure that that’s done, I 

think that has to be. 

There’s a lot of discomfort among us tribal leaders. And we don’t 

want to say that some tribes are treated because of the noise they 

make. But sometimes that formula is distributed and it happens 

that way. I think it will make everybody happy. 

Senator TESTER. Okay. Jim, priorities for the next Highway Bill 

reauthorization? 

Mr. STEELE. I think if there’s a way to get over this big hurdle 

or the bill that Mr. Smith was talking about, I think each individual reservation has their own specific priorities in terms of the 

bill. And usually we take the lead of our member tribes, so I’ll 

defer to Mr. Smith and Mr. Rosette. They deal a little more specifically on those areas. And so they bring those to our body and will 

push those forward. Generally, we’re united on our priorities. And 

as Mr. Smith and Mr. Rosette are working on them and they come 

up to our council, we’re going to be standing 100 percent behind 

their efforts. So I’d defer to them to answer more specifically. 

Senator TESTER. Good, Jim. 

Tim. 

Mr. ROSETTE. I agree with Big John on one of the proposals. You 

know, it has to be fair and equitable distribution of funding. And 

please don’t consider me an advocate of the solutions for any tribe, 

because I’m not. We need to be fair and equitable. But fair and equitable has not been the case over this last Highway Bill, especially 

for rural land-based tribes. The distribution of their distribution is 

not there, sir. 

63

And I think it needs to be toned down and simplified. One-third, 

one-third, one-third. Vehicle miles traveled has its places, but not 

with us, because we cannot equitably distribute on vehicle miles 

travelled. That in itself, even with the proposed changes to Question 10 right now, vehicle miles traveled even at the non-federal 

share are massive amounts that we can’t compete. 

We don’t have—You know where we live. You know. 

Senator TESTER. I do. 

Mr. ROSETTE. We don’t have it. What we have is what we have, 

you know. There’s just nothing, you know, unless we come down to 

that realization and we can get NCAI and the rest of them and 

they can come aboard and say, Hey, let’s just do this and do it 

right. Because it comes down to what’s right and what’s wrong. 

And what’s going on is wrong. 

Senator TESTER. Okay. John. 

Mr. SMITH. Thank you, sir. I think we’ve maintained the program pretty much as it is. We do have road construction. We have 

road maintenance. We do have the need for safety improvements. 

Also with that, we have needs in transit. The ability of getting our 

elders to and from the clinics, treatment, pay their bills in town, 

give them a ride with this current economic condition. Our seniors 

pay people to take them to town. They give them gas money to take 

them to town and come back, pay their bills. And senior citizens 

are the ones who are the best bill payers in the world. Our water 

departments have delinquency rates among younger people, but 

very little with the senior citizens. They have their lives budgeted, 

they take care of themselves, and they need assistance. And we as 

Indian people have always prided ourselves on taking care of our 

elderly. 

And I think that also we would recommend that we would work 

through the Montana-Wyoming Tribal Leaders Association, our 

council, in preparing our issues and our needs for transportation 

improvements. We do have a committee chairman who currently 

serves as our representative in our transportation committee. And 

we usually work most of our issues through that process. Thank 

you. 

Senator TESTER. Thank you. And I want to thank you all for your 

presentation and your answers to the questions. 

We’ve got 110 people at this hearing. That’s more than probably 

any D.C. hearing we’ve had in a while. So we appreciate the public 

being here. I want to express my appreciation to this panel and the 

preceding panel for their honesty and their eloquence. Thank you 

for being here. 

We’re going to move now to the public comment section. So while 

this group disbands, we will do that. 

Yes, Bud. 

Mr. MORAN. Senator, I want to thank you and thanks for your 

support people. They’ve been very helpful here. And it’s been a 

pleasure to have you here and have this meeting with them. It’s 

been really good. 

Senator TESTER. I think we’re going to make a proposal to have 

all our Senate Indian Affairs hearings here; how’s that? 

The public comment section, and I would ask everybody to try to 

keep it to three minutes. If some of you came so well prepared that 

64

you have a written statement, that’s outstanding. You can turn 

that in, too. I have a list here that Virginia has given me. There’s 

a mic in the center of the room. And so we’ll ask you to go to it. 

I’m going to start with Jim Lynch, who’s Director of the Montana 

Department of Transportation. Jim, you’ll get the ball rolling. And 

then after Jim gets done, if Kevin Howlett wants to get in line, 

we’ll go to Kevin. Then we’ll just kind of go down the list. Okay. 

Jim, good to have you here. 

STATEMENT OF JIM LYNCH, DIRECTOR, MONTANA 

DEPARTMENT OF TRANSPORTATION 

Mr. LYNCH. Senator Tester, thank you very much for asking me 

to speak. I want to thank Chairman Moran and the SalishKootenai people who have opened up their home for us all here 

today to have this hearing. 

I listened to the panel and I’ve heard some of the concerns, and 

I think the common denominator here is Indian Reservation Road 

investment is very important to the land-based reservations here 

in the state of Montana. 

And to give you a little bit of a highlight of the Montana Department of Transportation and our relationship with the existing landbased reservations in the state of Montana, it’s been a very positive 

one over the last five years. The Department of Transportation, 

and I’m saying this for an important point to make, since 2006 

we’ve invested $325 million in highway infrastructure on state 

highways that are inside the exterior boundaries of Montana reservations. We’ve included $4 million in transit, $3 million in training grants, $1 million in highway safety investment, $6 million in 

community transportation enhancement projects, and $150,000 for 

safe roads to school programs. 

And I’m saying that not to make the point that they don’t need 

Indian Reservation Road investment, but just the opposite. I am 

making that point to let you know that state highway departments 

in Montana have taken a very responsible road in using its core 

highway dollars to take care of its highways, even the highways 

within the existing boundaries of the Native American Indian reservations in Montana. That allows the Indian Reservation Road 

Program revenue that the reservations receive to be spent on their 

roads. And I think it also demonstrates the importance of that investment for those roadways. 

We have a great relationship with the seven land-based reservations in the state of Montana. And I can assure you as the Director 

of Transportation who’s been on every one of those reservations, I 

can assure you there’s tremendous need for highway infrastructure 

investment. And it’s not state highways, but actually truly Indian 

reservations roads. Thank you for your time. 

Senator TESTER. Thanks, Jim. Before you give up the mic, tell 

your name and position, that way you got it on the record. 

Mr. LYNCH. I am sorry, Senator. My name is Jim Lynch. I’m the 

Director of the Montana Department of Transportation. 

Senator TESTER. Thank you very much. Kevin, you’re up next. 

He’s coming up. Saw a great heath care facility. Kevin, man, it’s 

spectacular. We appreciate the tour today, Kevin. You’re up next. 

65

STATEMENT OF KEVIN HOWLETT, COMMISSIONER, DISTRICT 

1, MONTANA DEPARTMENT OF TRANSPORTATION 

Mr. HOWLETT. Thank you, Mr. Chairman. For the record, I’m 

Kevin Howlett. I’m a Transportation Commissioner for the Department of Transportation. I’m also the Director of Health and Human 

Service for the Salish-Kootenai tribes. 

Thank you, Mr. Chairman, for holding the the transportation 

hearing today here in Indian country, Flathead reservation, my 

home. 

First, let me say that my testimony does not represent the State 

of Montana, but reflects my service and observation as a Native 

American who has the privilege of sitting with this distinguished 

group of Montana citizens who represent the entire state. 

I was first appointed to the commission by Governor Judy Martz 

and was subsequently reappointed by Governor Brian Schweitzer. 

It has been a very challenging role, but one that I feel a great 

sense of accomplishment and pride in the projects that we’ve been 

able to do. 

The issue of transportation in Indian country is one that I have 

become increasingly observant. The specific needs that are present, 

including isolation and financial resources all need to begin to address the long overlooked infrastructure that has and continues to 

add to the many social and economic issues confronting tribal nations today. 

The purpose of my presentation today is two-fold. I would like to 

see the operations of the IRR Program be more reflective of the 

needs on ground. Methods by which scarce funds are distributed 

tend to ignore the needs of tribes who are large land-based and 

favor former Indian country. The reality is that most of the country 

was formally Indian country. 

As you are aware, tribal governments have very little ability to 

generate resources to meet the needs. There are many areas of our 

state that need repair and reconstruction. And the resources, as 

well as we can plan, are insufficient to meet the need. This is especially true for many Indian reservations that are not part of the 

Interstate System, National Highway System or State Secondary 

System. 

In addition to roads, there are issues of bridges, pedestrian walkways, et cetera. While I know very little about the operation and 

infrastructure of the BIA Roads Program, I can reflect upon a very 

concerted effort that I led as a commissioner to work with the BIA 

on projects on the Cheyenne Reservation. We and the Transportation Commission were able to utilize an agreement with the BIA 

that would have allowed them to use their force account equipment, et cetera, to complete the project. They were not able to deliver the project, and the state had to complete the project. This 

put a cold shoulder on further discussions about agreements on Indian land between the BIA and the state. 

I would hope that the issue of Indian reservation roads is further 

discussed and consideration be given to the formulation of an infrastructure and necessary resources to accommodate and utilize 

funds the state may have utilizing the reservation workforce. 

I would also like to recommend that the Bureau of Indian Affairs 

create an entity that can provide Reservation Roads Programs with 

66

the needed technical assistance to provide Indian contractors the 

expertise, including financial bargaining to compete for projects on 

the reservation, that they can within the scope of their resource 

and capacity achieve. 

The issue of financing could be expanded within the scope of this 

technical review and structure. My concern is that because the 

state has contracting law and regulations, there’s oftentimes no opportunity for local contractors or for that matter tribes the ability 

to compete. It might also be worth examining the potential for Legislative Land Reach, the new transportation bill, that would provide a preference on federal projects on Indian lands to tribes capable of competing on construction jobs, again, within the scope of 

their capacity. 

A final issue, I would like to ask for your support for federal resources to complete the Highway 93 project on this reservation. 

Again, thank you for holding the hearing and for your continued 

support for Indian country and the citizens of Montana. 

[The prepared statement of Mr. Howlett follows:]

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PREPARED STATEMENT OF KEVIN HOWLETT, COMMISSIONER, DISTRICT 1, MONTANA

DEPARTMENT OF TRANSPORTATION


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Senator TESTER. Kevin, thank you for your testimony. 

Scott Russell, part of the Crow Nation will be next. After him 

will be Jay St. Goddard. 

STATEMENT OF SCOTT RUSSELL, SECRETARY, CROW NATION 

Mr. RUSSELL. Thank you, Senator Tester. For the record my 

name is Scott Russell, Secretary of the Crow Nation. 

Once again, thank you, Senator, for holding the hearing here. 

Also, we’d like to extend our gratitude to the Flathead Nation for 

hosting this event and also for having the hearing here. 

Senator Tester, we do have written testimony that we’ve given 

to your staff already. But just to highlight a little bit. For the Crow 

reservation, at one time in the Fort Laramie Treaty of 1851, the 

Crow reservation accomplished 38 million acres. Since that time, it 

has dwindled down to 2.2 million acres. In the 1920 Crow Allotment Act, our reservation now is the highest fractionated reservation in the country. Ten percent of the all fractionation—The problem with fractionation is right here on the Crow reservation in 

Montana. 

And we need technical assistance to help us deal with right-ofway issues. We need technical assistance to help us deal with some 

200 landowners on one tract of land. And on our Crow reservation 

we have 184 interstate highway miles. We also have 3,500 miles 

of reservation roads. 

Now, you know Montana weather. It does not compare with 

southwest. It does not compare to anything in the south. We need 


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more money for maintenance. And some of these roads are impassable during that time. 

We had a premeeting prior to this hearing this morning, and I 

was quick to add that this nation is at war in Iraq and Afghanistan. And I was also proud to mention that per capita Native 

Americans are the highest minority group that enlist in times of 

war since World War I. We feel that we have given and given and 

given way too much. And we do appreciate what we get, but we 

have still kept giving. And yet we defend this country proudly. 

The United States Government has given billions upon billions 

of dollars to rebuild a foreign country in Iraq and Afghanistan. We 

feel that it’s about time that the United States Government rebuilt 

Native America. It’s only right. 

Any amount of money is good, but regardless, you start putting 

dollar amounts, it’s hard. Who’s to say who gets more. And it boils 

down to a divide and conquer theory, and it’s not right. 

But we do thank you for being here. 

Senator TESTER. Thank you, Scott. We appreciate your testimony. 

Jay St. Goddard following. After Jay will be Jacque Hostler. 

Jay’s part of the Blackfeet Tribal Council. 

Jay. 

STATEMENT OF JAY ST. GODDARD, BLACKFEET TRIBAL 

BUSINESS COUNCIL 

Mr. ST. GODDARD. Thank you, Mr. Tester. For the record my 

name’s Jay St. Goddard, Blackfeet Tribal Business Council, Land 

Chairman in our Resources and Roads Department. 

Also I want to thank Mr. Echo Hawk for being here with his 

staff. Once again, I think it’s great that you come out to the state 

of Montana to hold these kind of hearings. When you’re very sincere in your work, it shows the Montanans that you want to get 

the job done. 

As stated earlier, Mr. Echo Hawk does have a big bull by the 

horns, but I’ve seen a John Deere tractor slow a bull down, too. 

But there was a lot of talk this morning, and I made a comment 

in our session earlier about dollars. A lot of them to me were millions of dollars being spent on federal, state and county roads. But 

the need is still not being met in Indian country. And safety is an 

issue. And the roads all need to be rebuilt that were built in the 

1970s. 

Right now our roads are over 1,200 miles of BIA roads. State 

roads run through our reservations as Mr. Smith has stated. But 

off of those turns those other roads are BIA roads and are in poor 

shape. To the west of us is Glacier National Park. $20 million are 

being put into a road, and yet our needs are still being underfunded each year. 

You talk about the formula, Question 10. I’ve been to these consultations. Everyone who went to those consultations, they drove 

onto a nice interstate off of a nice state highway road. Maybe one 

of these consultations needs to be held in Heart Butte, Montana, 

where your car would fall apart on half of that BIA road. 

Anyway, I’d like to get to the point. And I’d like to point out that 

the graphs that were shown by these gentlemen that worked for 

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the that seven to eight years—Mr. Rosette, John Smith, Donny 

White from the Blackfeet—that they be listened to. As you heard, 

they’ve been writing letters for years. Tribal politics, councilmen 

like myself come and go, but these gentlemen work diligently and 

hard. They got the statistics. They know. And we can only bring 

this to you as tribal leaders. These gentlemen need to be listened 

to by the Interior. These people sitting right here. 

Mr. LeRoy stated that things were going good. That’s not true. 

I wasn’t happy with the consultation. I went to the one in Billings. 

Question 10 is being avoided. They don’t know how to answer it. 

The formula is so complex. Some of the people still don’t know how 

to figure it out today. And yet we’re hurting for dollars in Indian 

country. 

Seventy-eight percent of the roads since 2004 and 2009 have 

went to state and county roads, not BIA roads. So this formula is 

not working. If they don’t want to use Question–10, then we should 

go back to the old way. There was no problems then. 

And right now maintenance is hurting. We build roads in Indian 

country, but there’s no maintenance. You take the dollars away 

from the maintenance workers. 

Thank you and thank you for all your help and the other three 

senators that help you. 

Senator TESTER. Thank you, Jay. Next up is Jacque Hostler. 

Jacque will be followed by Pete Red Tomahawk. Jacque is a representative of the Indian Reservation Roads Program from California, so thanks for being here, Jacque. 

STATEMENT OF JACQUE HOSTLER, CALIFORNIA PRIMARY 

REPRESENTATIVE; VICE CHAIRPERSON, INDIAN

RESERVATION ROADS COORDINATING COMMITTEE 

Ms. HOSTLER. Thank you very much. Distinguished Senator Tester, honored witnesses, guests and staff, I would like to thank 

Chairman Dorgan, Vice Chairman Barrasso, the Senate Committee 

Leadership and express appreciation for the successful work this 

year and major accomplishments on transportation and other 

issues, as well as the Salish-Kootenai tribe. Good afternoon. My 

name’s Jacque Hostler. I’m the California Primary Representative 

and the Vice Chairperson of the Indian Reservation Roads Coordinating Committee. I am the Chairperson of the North Coast Tribal 

Transportation Commission and the Chief Executive Officer of the 

Trinidad Rancheria. Today I bring you comments from the North 

Coast Tribal Transit Association, which represents eight tribes. In 

addition, I’m speaking on behalf of 110 California tribes. 

As of 2005, California was the state with the largest native 

America population according to the census, and we received historically less than 2 percent of the IRR funding. 

Historically California treaties were negotiated setting aside 7.5 

million acres of land for California tribes. These treaties were 

never ratified with the state or the senate and kept hidden until 

1905. 

During the termination era, 43 tribes were terminated in California and lands were taken out of trusts and often lost. Through 

litigation settlement and congressional action many tribes have 

71

been restored, but the scars still remain and continue to affect the 

ownership of tribal land. 

Eventually many executive reservations and rancherias were established in California, although they were much smaller than the 

original treaty land. Because of this history, many lands that were 

constructed by the tribes and the Bureau of Indian Affairs were 

conveyed to state, county and local ownership. 

I bring this to you to bring the other perspective. This is why we 

have county and state roads on the Indian Reservation Roads Program. 

Today, history is repeating itself. Tribes do not have ingress and 

egress to the reservations and rancherias. Palm Springs is one example of stretching limits of the IRR program, and there may be 

others in California as well as every region in the nation. However, 

this perception is incorrect, and California should not be judged as 

building roads to Disneyland. 

While there are a handful of urban tribes with large casinos located on and near interstates, there are thousands of tribal dirt 

and gravel and unimproved roads that provide access to tribal reservations, villages and communities. 

Many tribes in California are located in remote areas without 

safe access to basic services such as health services, emergency 

services, jobs and schools. People die because they cannot get to 

medical services just as they do in every other region. It does not 

matter who owns the right-of-way. What is critical is that the ambulance can get through, that the school bus can travel safely, that 

people can get to safety if their land is consumed by wildfire, that 

the roads can support a tribal economy on a reservation, and that 

tribal members can get to jobs located off the reservation. 

SAFETEA–LU recognizes this and funding was based on relative 

need. 

You have my written comments. We do support the directive the 

agencies are putting forward. The BIA and Federal Highways are 

contracting with a private consultant to review the IRR inventory 

and address roads that are incorrectly classified. The process must 

be transparent and provide an opportunity for tribes to be part of 

the process. We’re pleased with the agencies in trying to resolve it. 

In closing, as I speak to you today, I am not only speaking as 

a transportation leader, I’m speaking from the heart of our people. 

I was born and raised in northern California. I went to school on 

the Hoopa reservation. I married a Hoopa tribal member. I have 

two tribal member children, four tribal member grandchildren. Our 

tribal elders, our grandmothers are cultural and spiritual leaders, 

and all of our tribal members depend on roads to access, not only 

basic necessities, but also spiritual, ceremonial and religious sites. 

We live in the mountains, in the river valleys, in the deserts and 

on the coast. We all ask you to visit California and see California 

tribes and lands through our eyes. 

Thank you again on behalf of California’s Pacific Region, 110 

tribes and tribal people. Thank you for your dedication. 

[The prepared statement of Mr. Hostler follows:] 

72

PREPARED STATEMENT OF JACQUE HOSTLER, CALIFORNIA PRIMARY REPRESENTATIVE; 

VICE CHAIRPERSON, INDIAN RESERVATION ROADS COORDINATING COMMITTEE


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Senator TESTER. Thank you, Jacque. I appreciate you coming all 

the way from California. 

Next we have Pete Red Tomahawk from the Standing Rock Sioux 

Tribe. Behind Pete will be Sampson Begay. 

STATEMENT OF HON. PETE RED TOMAHAWK, DIRECTOR OF 

TRANSPORTATION PLANNING AND DEVELOPMENT; GREAT 

PLAINS REGION PRIMARY MEMBER, INDIAN RESERVATION 

ROADS PROGRAM COORDINATING COMMITTEE, STANDING 

ROCK SIOUX TRIBE 

Mr. RED TOMAHAWK. For the record, my name is Pete Red Tomahawk. I am the Director of Transportation Planning and Development, and also I’m the Great Plains Region Primary Member on 

the Indian Reservation Roads Program Coordinating Committee 

representing the 16 tribes in North Dakota, South Dakota and Nebraska. 

On behalf of the Standing Rock Sioux Tribe, I want to express 

my appreciate to the Committee of Indian Affairs, to you, Senator 

Tester, and to the retiring Committee Chairman, Byron Dorgan for 

convening today’s hearing concerning tribal transportation. Thank 

you for your advocacy on behalf of the Indian tribes. 

With all of the problems facing our country today, transportation 

needs have been overlooked. We are grateful that you are taking 

a leadership role to address the most basic protection that we can 

afford for our members today, safe transportation through our 

lands. 

Over the past five years, as a result of significant increases, Congress—through Indian Reservation Roads Program, tribes have 

achieved many successes and improved transportation infrastructure throughout our communities and helped educate our members 

about road safety. 


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Infusion of the American Recovery and Reinvestment Act and 

stimulus funds put our members to work and accelerated roads reservation improvements. Funds Congress had provided to tribes 

have saved lives and made a change for the betterment of our communities. Our tribe is doing our part to make road safety our number one priority along with the Federal Highway Administration. 

For the record, Mr. Chairman, I did leave a copy with your staff, 

you know, on our testimony. But what we would ask for is, you 

know, for the past two winters, we had back-to-back disasters. We 

had some severe winters. So what we’ve asked is to look at the 

road maintenance issue. The number one issue is to look at Congress—looking your direction to champion through the highway 

trust funds. $100 billion in looking at this issue of road maintenance. We need your help in this area. And with that, you know, 

for the record, you have my testimony. 

Senator TESTER. Thank you, Pete. 

And for everybody else, if you have written documents, it will be 

part of the record if you turn it into us. 

Pete Red Tomahawk. Thank you very much. Appreciate you coming. 

Sampson Begay, and after Sampson it will be Richard Palmer. 

Sampson. 

STATEMENT OF SAMPSON BEGAY, CHAIRMAN,

TRANSPORTATION AND COMMUNITY DEVELOPMENT

COMMITTEE, NAVAJO NATION 

Mr. BEGAY. Thank you, Senator and members of the Committee. 

My name is Sampson Begay. Please accept these comments on behalf of the Navajo Nations from the state of Arizona and in support 

of today’s testimony by John Smith, the Transportation Director for 

the Shoshone Arapaho tribe. I am also Chairman of the Transportation and Community Development Committee of the Navajo Nation. I am also a member of the Indian Reservation Roads Program 

Coordinating Committee. I joined Mr. Smith in the stages of the 

Navajo Nation disagreement with and opposition to the Bureau of 

Indian Affairs and Federal Highway Administration new interpretive policy on Question 10 in which they seek to justify the expenditure of scarce indian reservation roads and state and county roads. 

On February 4 and 5, 2009, in Denver, Colorado, the Navajo Nation hosted a meeting attended by leaders from eleven small rural 

tribes whose exterior boundaries encompass an excess of 30,000 

square miles. These were and are the tribes for which we believe 

the Indian Reservation Roads Program was created. Tribes whose 

locations are so remote that they cannot rely on state and county 

transportation infrastructure. 

Yet, it was these very same tribes who by 2009 had lost the most 

under the BIA and the Federal Highway Administration’s implementation of the 2004 program regulations. The funds allocated to 

the land-based tribes loss were from 76 percent in 2004 to 28 percent in 2008. Because of these staggering drops in funding to rural 

tribes, was a staggering increase in the miles of state and county 

roads allowed into the Indian Reservation Roads Program inventory. 

78

From 2005 to 2007, the miles of the State Interior and miles of 

Tribal and BIA roads increased from 30,000 to 39,000. Clearly the 

BIA and the Federal Highway Administration were improperly 

using scarce Indian Reservation Road monies as a second source of 

funding for roads improperly using scarce monies that should have 

been used for reservation roads. 

At the meeting in Denver, the land-based and small tribes 

agreed——

Senator TESTER. Sampson, I’ve got four or five more folks who 

want to speak, and we’re going to run out of time, so I’ll ask you 

to wrap up. Your full written testimony that you turned in will be 

a part of the record, so——

Mr. BEGAY. That being the case, I also have a written comment, 

so I will turn it in. I thank you very much. 

[The prepared statement of Mr. Begay follows:]

79

PREPARED STATEMENT OF SAMPSON BEGAY, CHAIRMAN, TRANSPORTATION AND

COMMUNITY DEVELOPMENT COMMITTEE, NAVAJO NATION


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Senator TESTER. No, I want to thank you very much for coming 

up. I appreciate it very much. Thank you for your testimony. 

Richard Palmer is next. Richard, before you get up, I just ask 

that you be concise or we’re going to run out of time, as much as 

possible. I should have cut the other ones off earlier, I guess. But 

be as concise as possible. 

After Richard Palmer will be Harvey Spoonhunter. 

So go ahead, Richard. 

STATEMENT OF RICHARD PALMER, WHITE MOUNTAIN 

APACHE TRIBE 

Mr. PALMER. Thank you, sir. My name is Richard Palmer. I’m 

from the White Mountain Apache Tribe from Arizona. 

I’ve been involved in transportation for a long time. I know most 

of the members in here. Served with them. Sat with them. Laughed 

with them. And we all have the same problem. We need more 

money. My reservation is 1.6 million acres. We are a large landbased tribe. We are from Arizona, northeastern Arizona. And we 

suffer the same problems everybody else here does. We need 

money. We need interpretations of the Q–10. We need to look at 

reauthorization. A whole lot of this stuff is not just talk. We need 

to see action. 

Thank you very much. 

Senator TESTER. Thank you. Thank you for being concise, too, 

Richard. Thank you very much. 

Next is Harvey Spoonhunter followed by Rick Kirn. 

Harvey, you’re up. 

STATEMENT OF HON. HARVEY SPOONHUNTER, CHAIRMAN, 

WIND RIVER INDIAN RESERVATION 

Mr. SPOONHUNTER. Thank you, Senator. I’d also like to also 

thank Assistant Secretary Larry Echo Hawk and his staff. And I 

had the privilege of meeting with them at these consultations 

meetings. I appreciate the candor of the discussions and their view 

on all these complex issues. 

Mine is more of a comment, as John Smith has submitted our 

testimony and the panel, too. 

For the record, my name’s Chairman Harvey Spoonhunter from 

the Wind River Indian Reservation. 

And I’d just like to comment that before we can go forward on 

this road on resolve, we need to look at the past. When I say we 

need to look at the past, on April 29th, 1994, the Clinton Administration, we had the same memorandum where all federal agencies 

consulted with tribes. So we cannot wait any longer. We need to 

address these issues. I think we’re at a crossroads now. We had the 

opportunity to. Tribes are united together. And I would like to commend the President for setting up these consultation meetings so 

that we can have a voice in resolving a lot of these issues. 

Senator TESTER. Thank you. I Appreciate it. Thank you very 

much. 

Next is Mr. Kirn followed by Wilford. 

97

STATEMENT OF RICK KIRN, MEMBER, FORT PECK

ASSINIBOINE AND SIOUX TRIBE; MEMBER, FORT PECK

TRIBAL COUNCIL 

Mr. KIRN. Good afternoon, Senator Tester. 

For the record, my name is Rick Kirn. I’m a member of the Fort 

Peck Assiniboine and Sioux Tribe. I’m also a member of the Fort 

Peck Tribal Council. 

And I’ll be brief, Senator Tester. I think I can’t add too much to 

what people have said about the importance of tribal transportation. 

But do want to thank you for what you’ve done in Washington, 

D.C. We want you there and we need you there, but it’s also nice 

to have you home. I’ve been to several listening sessions you’ve 

had, and I know that you don’t only listen, but you also hear what 

people are trying to say. I want to thank you for that. 

And I think the main thing I wanted to talk about was the importance of the tribal transportation system. I think everybody 

here know what’s happening in western North Dakota and also 

southeastern Montana. It’s what they call Rockin’ the Bakken. And 

it’s one of the biggest in the country right now, and it’s heading for 

Fort Peck. And I can’t stress the importance of transportation in 

great economic development to our reservation, and actually to all 

of northeastern Montana. 

Fort Peck Reservation has four counties that we basically support up there as a reservation. Anything that happens with our 

transportation system has benefited all of northeastern Montana. 

And again, I just want to thank you for being here and listening 

to us. 

Senator TESTER. Thank you, Rick. I appreciate you being here, 

too. Wilford, you’re up next. 

STATEMENT OF HON. WILFORD WHATONAME, SR., CHAIRMAN, 

HUALAPAI TRIBE 

Mr. WHATONAME. Senator Tester, we want to thank you. I am 

Wilford Whatoname from the Hualapai Tribe out in Arizona. 

The day before we celebrated the Hoover Dam overpass that was 

constructed and built and now the public can travel over the Hoover Dam. Anyway, I was there yesterday and so was Mr. Tester, 

yes, and I want to say that we want to thank you, Senator Tester, 

for convening this meeting today, since Chairman Dorgan has been 

retired. And I want to thank you for your advocacy on behalf of 

many tribes. 

With all of the others problem with our country today, reservation needs seem to be overlooked. We are grateful that you have 

taken a leadership role to address the most basic protection that 

can afford our members today and safe transportation through 

lands. 

I have a book here. And one is a letter that was sent September 

22, 2010. And also Inner-Tribal Council of the Arizona Resolution, 

1710, addressing the methodology for the distribution of funding 

questioning Question 10. Also Resolution No. 1710, also in support 

of the distribution of funding. 

And also I have here a testimony of the Hualapai Tribe, July 12, 

2007. Which was done by Erin Forrest, 2007, and he is a director 

98

for the Hualapai Tribe on transportation. And he was a member of 

the committee that was working on the new TRIP Act that we had, 

and he finally said, I can’t get them to all agree on one thing, you 

know, all tribes are not agreeing, so therefore, he resigned from 

that committee. 

And, sir, I want to thank him and the other tribal members that 

were on that committee. And I just want to hand this in to you 

today. And hopefully we can get something done. 

Today the biggest thing that seems to bother very tribe is Question 10. It affects us and impacts us as well. 

Thank you for your time. 

[The prepared statement of Mr. Whatoname follows:]

PREPARED STATEMENT OF HON. WILFORD WHATONAME, SR., CHAIRMAN, HUALAPAI

TRIBE


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Senator TESTER. Thank you, Wilford, for being here. 

I think it’s about time to wrap this up. We had a good hearing. 

And I want to thank you everybody for traveling, some of you very 

long distances, here to the Flathead Valley for today’s hearing. I 

very much appreciate that. And I want to thank you for sharing 

your thoughts. And it’s good to hear about how the Recovery Act 


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has created jobs and improved transportation infrastructure 

throughout Indian country. And I appreciate the work you’ve done 

to find common ground on the Q–10 issue. 

It’s reassuring to hear that tribal leaders and administration officials are committed to working together closely. As we craft the 

next highway bill, it is critically important. And I appreciate your 

ideas. I appreciate the constructive thoughts that were offered. But 

it’s more important to know we don’t want the dialogue to end 

here. As we approach time to reauthorize the highway bill, we need 

to make sure Indian country is included in that process from the 

very beginning. 

Committee staff and my staff will be here for the next hour or 

so to keep today’s conversation open. And it’s important to know 

that this hearing will remain open for written testimony for two 

weeks, until October 29th. In case you have other folks out there 

that want to get their testimony in, there’s some time to do that. 

So please keep in touch with the administration and individual advocates on your particular priorities. We’ll keep the Committee’s official hearing record open, as I said, for two weeks. 

We saw here today that transportation is vital in Indian country. 

Whether it’s a fire truck trying to reach a rancher, a single lane 

road covered with ice or snow, or someone trying to navigate 12 

miles of 12 lanes of gridlock in southern California. Each tribe has 

its unique challenges, and we need to keep all of those challenges 

in mind. Rather than fighting against each other, I challenge everybody, as always, to work together. We’re fighting wars in the 

Middle East, we have troops deployed worldwide to keep our enemies at bay, so it’s essentially critical that we treat our neighbors 

as neighbors and not as enemies. 

We have a lot in common, including our community challenges, 

whether it’s tribes working with cities and counties to improve access or rural tribes working with urban tribes to protect all our 

members. Working together on these issues is absolutely critical. 

We need to keep talking together. We need to keep working these 

issues out with one another. We need to keep defining our priorities together, building alliances. 

By working together, we will improve tribal transportation. By 

improving tribal transportation, we will create jobs, we will make 

communities safer, and we will rebuild our public infrastructure. 

I want to thank you, again, all for being here. And I also want 

to thank Vice Chair, Senator John Barrasso, my friend out of Wyoming, for his contribution to this Committee. But it is of particular 

significance for me to point out somebody who we all know sitting 

in this room who has been a great leader for Indian country over 

all the time I’ve been in the U.S. Senate, which hasn’t been that 

long, but many years before that. Chairman Dorgan is going to be 

retiring from this Committee as Chairman of it. He has done nothing short of an incredible job addressing the issues in Indian country. If you take a look at what’s transpired in the last two years 

on this Committee under the leadership of Byron Dorgan, it has 

been absolutely incredible. So when you see him, if appropriate, 

give him a kiss. 

I want to thank you all for being at this Senate Committee on 

Indian Affairs Hearing, and we are now adjourned. 

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[Whereupon, at 4:10 p.m., the proceedings were in recess and 

subsequently reconvened at 4:23 p.m., and the following proceedings were entered for the record:] 

(119)

LISTENING SESSION

STATEMENT OF ALLISON BINNEY, MAJORITY STAFF

DIRECTOR/CHIEF COUNSEL, SENATE COMMITTEE ON

INDIAN AFFAIRS 

Ms. BINNEY. I’d like to ask everybody to take their seats, please. 

So for everyone that’s still here, I wanted to make sure that you 

knew that we’re going to keep the hearing record open until the 

end of the month. And so if anyone wants to submit written comments or written testimony to be a part of the hearing record, you 

have until the end of the month to get that to the Committee. I 

would fax it to us or e-mail us, and we’ll make sure it’s part of the 

record. It can be any length and it can include charts, anything like 

that. So feel free to do that. 

Senator Tester had to leave, and he wanted to make sure if there 

were any people who wanted to continue to get comments on the 

record today, that we had a listening session afterwards. So I know 

there’s only a few people here, but if any of you did want to go 

ahead and provide more oral comments, please go ahead and do 

those. We have our court reporter over here who is going to go 

ahead and keep track of the comments so they can become part of 

the official record. My name’s Allison Binney, by the way. I’m the 

Staff Director of the Senate Committee on Indian Affairs underneath Senator Byron Dorgan. This is Denise Desiderio. She’s our 

Senior Counsel for Chairman Byron Dorgan. And then Jim Hall, 

over here in the red tie, he is Counsel for Vice Chairman Barrasso 

from Wyoming. He’s the Vice Chairman of the Committee. 

And so with that, I don’t know if anybody here wants to provide 

any oral comments, but let me go ahead and open up the microphones. I’m going to ask that people use the microphone here in 

the middle. And I know it’s not there, because it’s right over here. 

Is there anybody who would like to provide any oral comments 

for the record? Anyone? 

Well, Chairman, we know you always have lots of comments. 

And then, Chairman, did you hear when I said that we’re going to 

leave the hearing record open until the end of the month? 

Mr. WHATONAME. Yes. 

Ms. BINNEY. Did you provide us any written testimony today? 

Mr. WHATONAME. Yes. I gave you some, but I think we did it 

more hurriedly because when the notice came out that you were 

going to have this field hearing, about just a few days ago, and 

then they had the Window Rock hearing out there, and I missed 

that one, so we decided to come up here. So we gave you some information there, but that was on Question 10 and also in support 

of the new TRIP Act, what they’re recommending in that. 

Ms. BINNEY. Well, we’ll keep these, and then if you want to provide additional written testimony or revamp the whole thing——

120

Mr. WHATONAME. Yes. It was just more hurriedly thrown together, just kind of a mishmash of stuff. It does include the Intertribal Council’s Resolution. They didn’t authorize me to do that, 

but, you know, I just thought I’d do that for them as well. But I 

did talk to Esther Corbett, she’s the Arizona person on that committee on transportation that represents the tribes in the Western 

Region. 

So anyway, we’ll do that when we get back. And we do want to 

thank you for taking your time to come up here and meeting with 

us again, and Senator Tester being able to sit down and listen to 

us. Besides, getting all the BIA, Department of the Interior, that’s 

great. You know, that’s that the other Montana-Wyoming tribes 

have to get to do. I know it’s with them, but I felt that we should 

come up and also address our concerns. It’s very important that we 

do that. We do have, basically, the same issues, funding. 

So again, we just want to thank you. And whatever you can do 

on our behalf. I do want to thank Denise and the others on the 

Committee on the juvenile detention facility that was built in 2007. 

It’s fully staffed now with 30-some staff people, and it’s up and 

running. We were sitting there empty for almost a year, but now 

it’s running and it’s working. So we want to thank you for that. 

Ms. BINNEY. Good. That’s great. One of your tribal judges, Joseph Flies-Away, testified on that. I think he submitted some written testimony looking into the fact that it was sitting there empty 

for so long. So I’m glad to hear that. 

Mr. WHATONAME. Yes. We just recently got some funding for the 

Green Entry Program where the juveniles are being taught gardening and farming. They do grow produce, lettuce, tomatoes and 

stuff. They’re kind of feeding the staff and themselves. They call 

it Green Entry Program for DOJ. So that’s working for them. 

I want to thank you again for coming here and working with us. 

I appreciate that. 

Ms. BINNEY. Thank you, Chairman. 

Did anyone else want to provide any additional oral comments? 

Pete Red Tomahawk. 

Mr. RED TOMAHAWK. Yes. The areas that I didn’t read for the 

record is the written testimony from Standing Rock Sioux Tribe. In 

looking at the advocacy for increase of annual probation for the 

IRR program to 800 million annually with step increases of 50 million, we’re likely to grow the IRR Program to just over one million 

at the end of the next reauthorization. 

And also to highlight the area of safety. And we need to lower 

the numbers. I’m presently a member of the FHWA Safety Committee and looking at the tribes’ use throughout Indian country 

and looking at the educational component and doing the Tribal 

Safety Summits throughout the country. We just did one here in 

Oklahoma. We’re going to be doing one here next week in the state 

of South Dakota at the Lower Brule Sioux Tribe on the 26th and 

27th, and looking at that. 

I shared with John Baxter. And Mr. Baxter is going to be present 

at the Safety Summit. And I shared the comments with the Montana MHWA Division administrators. And looking towards Montana and Wyoming having a Tribal Safety Summit also. So in looking in that direction, overall we’ve come back to national reports, 

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and looking at lowering the numbers and lowering—At the present 

time, even looking at the national decrease in the numbers, still for 

Indian Country the numbers, they’re still starting to—So looking at 

that issue, we advocate for two various safety—one though FHWA. 

And looking at these hearing components, we have a lot of roads 

that need new engineering component and looking at the slopes of 

these highways that we travel on a daily basis. So hopefully with 

looking at those corrections that can be done, we’re able to make 

the, you know, increases and also these decreases of these things 

that are taking place. 

So the other area was enforcement. Looking at engineering, enforcement, education and EMS, emergency medical services. So in 

looking at the engineering, education, enforcement, we presently 

have a surge that’s going on at Standing Rock. And it’s working 

very well, looking at the amount of law enforcement officers being 

able to go to all communities. Yet, more importantly, looking at the 

deterrence towards these five issues that possibly couldn’t have 

happened without them being there and actually happening. So in 

looking at that, it is working. 

And then the EMS, and looking at the emergency medical services. You know, from the rural side, there’s no such thing as the 

golden hour. In looking at these crashes that happen that, you 

know, to the nearest trauma center, it’s some distance away from 

these scenes that happen in Indian country. 

So looking at these issues, I share with you the advocacy of trying to get more funding to these areas. So with that, I want to 

thank you for allowing me to make additional comments and also 

to share the written testimony. I shared that with you, Denise. 

Also we wanted to share our congratulations to Senator Dorgan, 

looking at the excellent job that he’s done throughout the years. It’s 

very sad for us to see him go and wanting him to stay on, but Senator, even when he came to Standing Rock in June or July, you 

know, tribe was very honored for him to come and make that visit. 

But more importantly, congratulate him for the excellent work that 

he’s done, not only for the tribe, but all of Indian country across 

the country. 

So with that, I want to thank you for taking time out of your 

schedule to be here with us. Thank you very much. 

Ms. BINNEY. Thank you. Would anyone else like to provide any 

additional oral comments? 

STATEMENT OF SHIRLEY KNAUS, VICE CHAIRPERSON, 

TRINIDAD RANCHERIA 

Ms. KNAUS. Hi. My name is Shirley Knaus. I am the Vice Chairperson at Trinidad Rancheria in northern California. 

And I’ve testified before other hearings for transportation in the 

past couple of years. And I just wanted to say once again that we 

need to work together and not pit tribe against tribe, find that fair 

and equitable solution like everybody is saying, and not to lose 

sight of the commonalities and the common meanings that all the 

tribes have, and to sort out the extreme examples on both positions, no matter what stand a region has. Look at what a viable 

solution would be, and also what the law and the regulation states, 

and not leave it to be one or two persons’ interpretation of—for inVerDate 0ct 09 2002 13:18 Mar 22, 2011 Jkt 065034 PO 00000 Frm 00125 Fmt 6601 Sfmt 6601 S:\DOCS\65034.TXT JACK
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stance, a BIA employee making an interpretation. Because that’s 

one theme I heard throughout all these different hearings, is that 

the BIA differs from region to region and they interpret it differently. So the consultant and the analysis and just restructuring 

possibly within the BIA to make it more consistent, then we might 

not have as many different problems if each region was applying 

the regulation in a consistent manner. 

So I would just like to see that consultations continue, the town 

halls and the hearings and that whole process continue for tribes 

to get engaged and to help work in the manner that everybody 

talks about. And I would hope that everyone, the tribes and the administration, take that to heart and really be collaborative, not just 

when they’re making their speeches. But if we really work together, I think we can come up with a good solution that meets the 

needs of tribal people, because that’s all the same no matter where 

you go. 

Thank you. 

Ms. BINNEY. Thank you. Would anyone else like to provide some 

comments. 

STATEMENT OF TIM PENNEY, TRIBAL TRANSPORTATION

COORDINATOR, FEDERAL HIGHWAY ADMINISTRATION,

OFFICE OF POLICY 

Mr. PENNEY. Yes. If I could make a couple comments to possibly 

for you and maybe to make it back to other members and staff and 

the Committee. 

My name’s Tim Penney. I’m the Tribal Transportation Coordinator for Federal Highway Administration in the Office of Policy. 

You know, one thing that’s really been focussed on here today 

and in a lot of these consultation sessions and different hearings 

that have been held, there’s a real focus on the Indian Reservation 

Roads Program, and I think rightly so, because that is the dedicated source of funding. But what gets a little bit lost in that is 

all the other areas in which tribal governments are working in 

transportation and all the other needs that are out there in tribal 

transportation that go beyond IRR Program funding. 

And I wanted to touch on just a few of them to point them out 

that some of the activities that are happening and some of the 

needs that remain out there among tribal governments and transportation. Let me start with one. One of the items that we’ve 

worked on a lot in Federal Highways with tribes and with state 

DOTs is looking at state and tribal intergovernmental relations. 

How can we get tribes and states to better work together? Looking 

at cooperative projects. Looking at technical assistance and training. And really looking at building expertise of tribes. And that’s 

sort of a theme that we’ve continued to push. And that’s a desire 

that we’ve heard from tribes in wanting to build their own programs, sort of grow their own staff, take on as much of the program as they can, and not continue their dependence on the BIA 

to run the programs. 

And there’s tribes all over the country that are at various stages 

of that. Some that are almost running complete transportation programs. Some that are taking it piece by piece, maybe just doing 

planning, maybe just doing the construction. But that’s a common 

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theme among tribes, of wanting to take over more of those programs. 

There is no actual sort of mandate to do that or dedicated funds 

to do that, but that’s something we built into our program at the 

Federal Highways. We see that as a tremendous need. And from 

our administrator on down to really make that part of our mission, 

and not just an extra, not having working with tribes, just an extra 

piece. So when we talk about our primary mission on the federal 

aid side is working with states, but we also include tribal governments as part of that. So that would be one area. 

Another area—what I kind of mentioned—sort of jumping from 

the state/tribal intergovernmental relation to building capacity. 

You know, the main reason I want to look at that, is looking at 

that for the tribes and from the tribes, not just for them, but to 

sort of really support self-determination in transportation. They’re 

really taking that on. If we can look at aspects of transportation 

with tribes, that’s going to support self-determination and self-governments. 

this concept has been bounced around for 30-plus years. We talk 

about it a lot. We hear about it a lot. They talk about sovereignty 

and self-determination, but when it gets down to it, there’s got to 

be some push from their end to take over these programs and the 

ability from the Federal Government-side in the programs to support that. And I think those two pieces have to meet. 

One of the other areas that I want to talk about, and this has 

come up because at one point in Federal Highways, we did have 

a little dedicated money for research funding. When people think 

of research, they think of some of the hard engineering research 

and crash testing and some of the things we’ve done in Federal 

Highways. But there’s a real need for a dedicated research program 

within Tribal Transportation. There’s a whole range of topics, from 

policy topics to technical topics. And especially now, as tribes are 

getting into building their own equipment and running their own 

programs. What does that mean and how does that work? There’s 

funding out there, but again, it’s always directed towards state 

DOTs or universities or transportation research boards or things 

like that. But there’s no dedicated, sort of, line item for tribal 

transportation programs. And there’s a tremendous need out there. 

We’ve been lucky to do a few things over the years, but it’s really 

scraping and stealing from other pieces of programs to convince the 

folks in safety to do a safety research project on tribes. We’ve been 

able to convince some people in planning to do some tribal planning. But we aren’t able to just, from my office, identify a problem 

statement and go after it. It takes a lot of work of pulling in other 

staff and, you know, to convince them to convince their superiors 

that this is really something worthy to fund, something they don’t 

have to do within their own program. If it’s a safety program or 

an infrastructure program, they think something’s worth funding, 

they go after it. Within the tribal program, if we think something’s 

worth funding, we have to convince a lot of people to tap into their 

resources, be it dollars or people, the expertise here. 

Really those are some of the program areas. You know, one of 

the things I wanted to say also is within Federal Highways, again, 

you heard a lot about the IRR and continue to hear about that. 

124

But I just want to say one of the things we’ve been trying to 

push is some of the themes within Federal Highways and when do 

we want to do the tribal transportation, not next year, not the next 

legislative cycle, but where are we looking? Ten, twenty years down 

the line? And this is really not just from Federal Highways, but 

based on some of the input and observations we have from the 

tribes that we’ve been working with and being able to get out 

around the country. But I think we really want to see, sort of, national support and self-determination, tribal self-determination in 

transportation, is gonna really push that for tribes within the program development of the transportation program. 

The next piece is fulfilling that capacity and expertise where 

they can take on programs, where they’re able to talk to state 

DOTs at the same level, have the same technical skills as all those 

transportation practitioners and understand the regulation side 

and the technical side of the program. And finally, in doing that, 

I think we’ll finally see the improvement in transportation systems 

and highway safety out there among reservations and tribal communities. 

So those are kind of the themes, I think, we’re trying to build on 

internally at Federal Highways, and I know that goes beyond a lot 

of IRR Program. Again, I know when you look at $450 million, it 

looks big, and that becomes a topic of discussion. I think there’s a 

lot of other things that don’t have large dollar amounts attached 

to them. Sometimes it’s an idea rather than a dollar amount, and 

we have to push those ideas and concepts out among our divisions 

and state DOTs and tribal governments to accomplish some of theses things. 

So with that, I thank you for being out here and having this 

today. Thanks. 

Ms. BINNEY. I actually have a question. You had mentioned that, 

you know, there’s a movement with some tribes toward starting up 

their own department of transportations. 

Mr. PENNEY. Right. 

Ms. BINNEY. Do you have any good examples where tribes have 

actually developed full department of transportations up and running? 

Mr. PENNEY. I don’t know if I can say there’s anybody that has 

a full department of transportation. Cherokee in Oklahoma has a 

lot of their work inhouse. They do design work. They do materials 

testing. I think they do some of their planning. 

And Navajo has a big program, even though technically they’re 

considered a direct service tribe. They’ve got over 120 people on 

staff within Navajo DOT. So they’re building the planning side and 

technical side. So they’re doing a lot of their work, doing a lot more 

maintenance, buying the equipment they need to take on some of 

these tasks. 

There’s others that are sort of getting the piece work. For a while 

at Oglala Sioux at Pine Ridge, they were starting to build a department where they looked at, you know, what were their needs. They 

had a safety program. They had a maintenance group. They had 

a construction group. 

So I don’t know if there’s anyone that can really say from start 

to finish has done this. I’d like to hold up examples and say, here’s 

125

the ten that we have right there. There’s some that are getting 

there. There’s some that are close. There’s some that maybe say 

that they’re there. I think it’s a work in progress for the tribes. And 

that’s something I think we need to focus on with those tribes that 

are doing it. Get some peer-to-peer exchange on how they did it. 

Because there’s a lot of considerations, not just getting program 

funding, political considerations of going through tribal chairmen 

saying, we need ten people, twenty people to run this program, and 

we’ve got salaries that are going to eat up this much. And how you 

go about that. What are the technical considerations? What are the 

job requirements for the people that you’re bring on? How does that 

fit with the existing tribal government structure? 

So I think from the tribes that are doing that—and what we’ve 

tried to do is bring some of them together, to say, How did you do 

that? What were the consideration to sustain this? You know, 

might be, you can do this for one year, two years, but five, ten, 

twenty years down the line, are you still going to have a tribal 

DOT out there? 

Mr. HALL. One of the big things you said—I’m just kind of building on what Allison said, but, you know, within tribal capacity and 

what you were discussing in terms of building transportation departments. There’s been a lot of folks in the United States Senate 

that have been interested in that. You kind of already kicked out 

a couple of examples, but do you have any other examples of what 

we could do legislatively to take a look legislatively that would help 

build capacity for tribal transportation departments? 

Mr. PENNEY. Well, you know, one thing we bounced around last 

go-round for SAFETEA–LU internally, and it got folded into another program and sort of disappeared. We talked about having a 

tribal capacity building program, and it got folded into this planning capacity building program that became a very generic thing. 

But I think something like that where we’re looking at—I mean, 

that’s a big thing for a lot of the tribes, how do you start that program? If you now have the capability to do a 638 Program, you 

know, where there is no start-up money, unless the tribes are putting in some other source of funds. And some tribes are. Some 

tribes are putting in tribal gas tax money or casino revenues or 

other tribal revenues. Jacque is over there. Up at Hoopa they had 

the gravel operation. Some of that went back into transportation. 

So, you know, people are building programs in those ways. But I 

think if there was a program where we could identify the tribes or 

really self-identify tribes and propose a plan on what they’re trying 

to build to help with that sort of start-up cost where they can get 

into the same things that state DOTs do. 

I worked for a state DOT when I first started my career, and 

that was a thing every day, you wanted a project to charge to, 

something to charge your costs to every day. And tribes don’t have 

that ability right now, and that’s where they’re stuck. They’re not 

able to charge their planning costs or design costs or construction 

costs to something. And I think that’s the idea to get them up to 

speed with the rest of the transportation profession, how things are 

done industry-wide, and not have, well, here’s how states and counties do it, and tribes are a little bit different. I mean, we should 

have a program that’s kind of seamless, even through there are 

126

vast differences on how things operate on the reservation. But I 

think in structuring a program, there’s some good lessons out there 

on how things have been done from a lot of different sizes we’re 

looking at for tribes. Anything from a small roads department to 

a public works department to a full blown DOT-size operation. 

And, you know, tribes are going to fit into many of those models 

that are out there. 

Ms. BINNEY. Thank you. 

Mr. PENNEY. Thanks. 

Ms. HOSTLER. For the record, I’m Jacque Hostler. I’ll just go with 

Trinidad Rancheria for now. 

You know, Tim brings up a lot of good points. You guys are asking some questions. Grassroots on the ground in Indian country, 

there are so many disconnects. There’s a disconnect between the 

chairman and the tribal council to the staff and understanding 

SAFETEA–LU and understanding 25 CFR Part 170. It was said 

over and over today, it’s extremely complex. 

I’ve been working in it since February of 2005. This is October 

of 2011. And I consider myself literate in the inventory in the system. The disconnect also—because the tribal chairmen and the 

tribal counsel don’t understand what the staff understands. But 

then also our system is totally different than Federal Highways, 

state DOTs, than the counties, than the local governments. So we 

are like a six-category, and none of those categories totally interconnect. 

So we in northern California created the North Coast Tribal 

Transportation Commission to try and share our knowledge. And 

as Tim mentioned, I went to work for Hoopa in 2002 as their aggregates and ready-mix manager. And in that time I brought my private enterprise experience, and I taught them how to build capacity. We built an aggregate crushing plant. We came up with spec 

material. We delivered spec ready-mix. We went out and we used 

the new construction money that came through the IRR allocation 

to build projects. We supplied those projects with our own aggregates, our own ready-mix, and our own workers. If it needed to be 

bid out, then it was bid out, but our equipment, our men, our materials were put to work. It was an exemplary. And we were teaching 

the other tribes how to do that in northern California. 

We ended up with two counties, Humboldt and Del Norte County, and over 11 tribes participating in this consortia and beginning 

to understand and learn about 25 CFR Part 170 and how to update 

the inventory and how to section-by-section get your roads in. 

And our biggest disconnect was with the regional engineer and 

his not understanding 25 CFR, but then also with all of the other 

agencies within our county, within our state and nationally. Because it felt like we were fish out of water. It felt like we were the 

different ones, and nobody really understood what we had to go 

through in our county. 

So the first step was to build the North Coast Tribal Transportation Commission. The next step was to become part of the Regional Planning Authority, which in Humboldt County was Humboldt County Association of Governments. So within three years, 

we had five tribes sitting on that technical advisory committee, because money was coming in through that regional planning agency 

127

for tribes. We were part of the county, but we were never getting 

that money. They counted our populations. The tribal chairmen are 

at home slamming our fists on the table saying, the county doesn’t 

do anything on the reservations, and they’re right, they don’t. Because the county cannot provide services for the rest of the county, 

and reservations are the last on the list. 

So as we became part of that association of governments, that regional planning authority, we were able to learn their system. We 

were able to say, wait a minute, this a county road. We have a 

project ready to go, and you need to give us money for this project. 

Slowly but surely over the past five or six years, we’ve gotten 

projects on that State Transportation Improvement Plan. Because 

we started really small, and we began developing that. You know, 

those baby steps of learning the system. 

Then we took it to Caltrans. The Native American Advisory Committee meets statewide southern California, northern California, 

central California. We began sharing this knowledge with them on 

how we were doing things in northern California. And I would say, 

over the last seven years, we’ve built a lot of our social networking 

has really, really improved. And we have a direct line now to the 

director at Caltrans. 

We agree the states and the counties need to step up and do 

what they need to do. California’s in a budget crisis. There’s all of 

these issues. So how do we become part of the solution? How do 

we leverage funds with the other funds that are available? Those 

are the things we are teaching the tribes in northern California. 

And you can go in and build a transportation department. I love 

doing that. That’s easy. The hard part is understanding the system, 

getting those systems to all coexist and not having the systems say, 

well, I can’t help you with that. 

So then we wind up at the Indian Roads Coordinating Committee. And the regions that have lost their lands and have county 

and state roads bisecting traditional lands, it’s not our fault that 

that happened. We still have to deliver services to Indian country. 

So they don’t understand our situation. As we go and visit their regions, we understand their situation. They need to come and understand our situation. 

And one of the reasons that it’s difficult to speak, is my husband’s been over twenty years building that relationship in Hoopa. 

And, you know, it takes a long time to move forward before a tribe. 

They don’t want to give up that sovereignty, that self sufficiency, 

that self determination, and go over to the county and the state 

and say, you know, we’re a sovereign nation and in California not 

be recognized. There’s so many issues. 

So, you know, we won’t go away. We keep showing up, you know, 

we keep being the underdog, but that’s okay, because we’re educating people. 

Ms. BINNEY. Thank you, Jacque. I just want to thank everyone 

for being here. Again, the oral comments that were just made now 

are going to be part of the hearing record. But the hearing record 

will stay open until the end of the month, so if you want to provide 

written testimony, get that to the committee by the end of the 

month, and we’ll include that as part of the hearing record as well. 

128

And with that, thank you for being here. It was a great hearing. 

Thanks. 

[End of proceedings.] 

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APPENDIX

PREPARED STATEMENT OF HON. CEDRIC BLACK EAGLE, CHAIRMAN, APSAALOOKE

(CROW) NATION


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PREPARED STATEMENT OF HON. CHARLES W. MURPHY, CHAIRMAN, STANDING ROCK

SIOUX TRIBE


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PREPARED STATEMENT OF THE NORTH COAST TRIBAL CHAIRMEN’S ASSOCIATION

(NCTCA)


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PREPARED STATEMENT OF HON. TIMOTHY P. HINTON, SR., VICE CHAIRMAN, WHITE

MOUNTAIN APACHE TRIBE


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PREPARED STATEMENT OF TRACY ‘‘CHING’’ KING, PRESIDENT, FORT BELKNAP INDIAN

COMMUNITY COUNCIL


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Æ


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