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S. HRG. 108–122

INDIAN RESERVATIONS ROAD PROGRAM

HEARING

BEFORE THE

COMMITTEE ON INDIAN AFFAIRS

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON

S. 281, S. 725, S. 1122, S. 1165

PROPOSALS TO AMEND THE INDIAN RESERVATIONS ROAD PROGRAM

JUNE 4, 2003

WASHINGTON, DC

(
COMMITTEE ON INDIAN AFFAIRS

BEN NIGHTHORSE CAMPBELL, Colorado, Chairman

DANIEL K. INOUYE, Hawaii, Vice Chairman

JOHN McCAIN, Arizona,

PETE V. DOMENICI, New Mexico

CRAIG THOMAS, Wyoming

ORRIN G. HATCH, Utah

JAMES M. INHOFE, Oklahoma

GORDON SMITH, Oregon

LISA MURKOWSKI, Alaska

KENT CONRAD, North Dakota

HARRY REID, Nevada

DANIEL K. AKAKA, Hawaii

BYRON L. DORGAN, North Dakota

TIM JOHNSON, South Dakota

MARIA CANTWELL, Washington

PAUL MOOREHEAD, Majority Staff Director/Chief Counsel

PATRICIA M. ZELL, Minority Staff Director/Chief Counsel

(II)
(III)

C O N T E N T S

Page

S. 281, S. 725, S. 1122, and S. 1165, text of .......................................................... 3

Statements:

Bingamin, Hon. Jeff, U.S. Senator from New Mexico ................................... 79

Bullard, Loretta, president, Kawerak, Inc., Nome, AK ................................. 101

Buzzard, Harley, director of roads, Cherokee Nation Tribal Council .......... 92

Campbell, Hon. Ben Nighthorse, U.S. Senator from Colorado, chairman,

Committee on Indian Affairs ....................................................................... 1

Domenici, Hon. Pete V., U.S. Senator from New Mexico .............................. 80

Garrigan, James, transportation planner, Red Lake Band of Chippewa

Indians of Minnesota, Red Lake, MN ......................................................... 98

Gishi, Leroy, chief, Division of Transportation, BIA ..................................... 82

Hamilton, Arthur E., associate administrator for Federal Lands Highway,

Federal Highway Administration, Department of Transportation,

Washington, DC ............................................................................................ 81

Johnson, Hon. Tim, U.S. Senator from South Dakota .................................. 77

Martin, Jackie Bob, chairman, Resources Committee, Cherokee Nation

Tribal Council ................................................................................................ 92

Maryboy, Mark, chairman, Navajo Transportation and Community Development Committee, Navajo Nation Council ............................................... 90

Milonovich, Richard, chairman, Agua Caliente Band of Cahuilla, Palm

Springs, CA ................................................................................................... 95

Shirley, Jr., Joe, president, Navajo Nation, Window Rock, AZ .................... 90

Smith, Chadwick, chairman, Cherokee Nation, Tahlequah, OK .................. 92

Thomas, Hon. Craig, U.S. Senator from Wyoming ........................................ 78

Virden, Terry, director, BIA, Department of the Interior, Washington,

DC .................................................................................................................. 82

APPENDIX

Prepared statements:

Bullard, Loretta (with attachment) ................................................................. 111

Garrigan, James (with attachment) ................................................................ 123

Hamilton, Arthur E. ......................................................................................... 140

Inter-Tribal Council of the Five Civilized Tribes ........................................... 153

Maryboy, Mark ................................................................................................. 109

Milonovich, Richard (with attachment) .......................................................... 156

Ockert, general manager, Reservation Transportation Authority ............... 173

Shirley, Jr., Joe (with attachment) ................................................................. 175

Smith, Chadwick (with attachments) ............................................................. 185

Virden, Terry .................................................................................................... 196

Additional material submitted for the record:

Hecker, JayEtta, director, Physical Infrastructure Issues, GAO, letter

to Hon. Frank R. Wolf, House of Representatives ..................................... 201

Johnson, Anthony D., chairman, Nez Perce Tribal Executive Committee,

letter ............................................................................................................... 212

National Tribal Leadership Paper on Tribal Transportation Policy ............ 168

(1)

PROPOSALS TO AMEND THE INDIAN RESERVATIONS ROAD PROGRAM: S. 281, INDIAN

TRIBAL SURFACE TRANSPORTATION IMPROVEMENT ACT OF 2003; S. 725 AND S.

1122, TRIBAL TRANSPORTATION PROGRAM

IMPROVEMENT ACT OF 2003; S. 1165, AMERICAN INDIAN RESERVATION TRANSPORTATION IMPROVEMENT PROGRAM ACT

WEDNESDAY, JUNE 4, 2003

U.S. SENATE, COMMITTEE ON INDIAN AFFAIRS, Washington, DC.

The Committee met, pursuant to notice, at 10:05 a.m. in room

485, Senate Russell Building, Hon. Ben Nighthorse Campbell

(chairman of the committee) presiding.

Present: Senators Campbell, Johnson, Thomas, Domenici, and

Murkowski.

STATEMENT OF HON. BEN NIGHTHORSE CAMPBELL, U.S. SENATOR FROM COLORADO, CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS

The CHAIRMAN. The Committee on Indian Affairs will be in session.

Senator Inouye will be along shortly, but we will go ahead and

get started.

Welcome to the committee’s hearing on various legislative proposals to reauthorize the Indian Reservation Roads program; 60

percent of roads in the IRR system remain unpaved, which has obvious impacts on the tribes’ ability to improve their economies.

Rural Indian communities having paved roads often means the difference between life and death in terms of fire and police protection, ambulance service, and our growing concern with homeland

security.
2

As of this past Monday, four Indian roads bills are pending before the committee: S. 281, which I introduced, S. 725, which Senator Bingaman introduced, S. 1122, by Senator Johnson, and S.

1165, by Senator Domenici. Today we will hear from Federal and

tribal witnesses to determine how best to reform the IRR program.

I will tell the members that it is my intention to report a bill by

the end of June as part of the larger TEA–21 reauthorization which

will be on the Senate floor in July.

[Text of S. 281, S. 725, S. 1122, and S. 1165 follow:]
3

1

II

108TH CONGRESS

1ST SESSION S. 281

To amend the Transportation Equity Act for the 21st Century to make

certain amendments with respect to Indian tribes, to provide for training

and technical assistance to Native Americans who are interested in commercial vehicle driving careers, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 4, 2003

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To amend the Transportation Equity Act for the 21st Century to make certain amendments with respect to Indian

tribes, to provide for training and technical assistance

to Native Americans who are interested in commercial

vehicle driving careers, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Indian Tribal Surface Transportation Improvement Act

6 of 2003’’.
4

2

•S 281 IS

1 (b) TABLE OF CONTENTS.—The table of contents of

2 this Act is as follows:

Sec. 1. Short title; table of contents.

TITLE I—INDIAN TRIBAL SURFACE TRANSPORTATION

Sec. 101. Short title.

Sec. 102. Amendments relating to Indian tribes.

TITLE II—TRAINING AND TECHNICAL ASSISTANCE FOR NATIVE

AMERICANS

Sec. 201. Short title.

Sec. 202. Purposes.

Sec. 203. Definitions.

Sec. 204. Commercial vehicle driving training program.

3 TITLE I—INDIAN TRIBAL

4 SURFACE TRANSPORTATION

5 SEC. 101. SHORT TITLE.

6 This title may be cited as the ‘‘Indian Tribal Surface

7 Transportation Act of 2003’’.

8 SEC. 102. AMENDMENTS RELATING TO INDIAN TRIBES.

9 (a) OBLIGATION LIMITATION.—Section 1102(c)(1) of

10 the Transportation Equity Act for the 21st Century (23

11 U.S.C. 104 note; 112 Stat. 116) is amended—

12 (1) by striking ‘‘Code, and’’ and inserting

13 ‘‘Code,’’; and

14 (2) by inserting before the semicolon the follow15 ing: ‘‘, and for each of fiscal years 2003 and 2004,

16 amounts authorized for Indian reservation roads

17 under section 204 of title 23, United States Code’’.
5

3

•S 281 IS

1 (b) DEMONSTRATION PROJECT.—Section 202(d)(3)

2 of title 23, United States Code, is amended by adding at

3 the end the following:

4 ‘‘(C) FEDERAL LANDS HIGHWAY PROGRAM

5 DEMONSTRATION PROJECT.—

6 ‘‘(i) IN GENERAL.—The Secretary

7 shall establish a demonstration project

8 under which all funds made available

9 under this title for Indian reservation

10 roads and for highway bridges located on

11 Indian reservation roads as provided for in

12 subparagraph (A) shall be made available,

13 on the request of an affected Indian tribal

14 government, to the Indian tribal govern15 ment for use in carrying out, in accordance

16 with the Indian Self-Determination and

17 Education Assistance Act (25 U.S.C. 450

18 et seq.), contracts and agreements for the

19 planning, research, engineering, and con20 struction described in that subparagraph.

21 ‘‘(ii) EXCLUSION OF AGENCY PARTICI22 PATION.—In accordance with subpara23 graph (B), all funds for Indian reservation

24 roads and for highway bridges located on

25 Indian reservation roads to which clause
6

4

•S 281 IS

1 (i) applies shall be paid without regard to

2 the organizational level at which the Fed3 eral lands highway program has previously

4 carried out the programs, functions, serv5 ices, or activities involved.

6 ‘‘(iii) SELECTION OF PARTICIPATING

7 TRIBES.—

8 ‘‘(I) PARTICIPANTS.—

9 ‘‘(aa) IN GENERAL.—For

10 each fiscal year, the Secretary

11 shall select 12 geographically di12 verse Indian tribes from the ap13 plicant pool described in sub14 clause (II) to participate in the

15 demonstration project carried out

16 under clause (i).

17 ‘‘(bb) CONSORTIA.—Two or

18 more Indian tribes that are oth19 erwise eligible to participate in a

20 program or activity to which this

21 title applies may form a consor22 tium to be considered as a single

23 tribe for the purpose of becoming

24 part of the applicant pool under

25 subclause (II).
7

5

•S 281 IS

1 ‘‘(cc) FUNDING.—An Indian

2 tribe participating in the pilot

3 program under this subpara4 graph shall receive funding in an

5 amount equal to the sum of the

6 funding that the Indian tribe

7 would otherwise receive in ac8 cordance with the funding for9 mula established under the other

10 provisions of this subsection, and

11 an additional percentage of that

12 amount equal to the percentage

13 of funds withheld during the ap14 plicable fiscal year for the road

15 program management costs of

16 the Bureau of Indian Affairs

17 under subsection (f)(1).

18 ‘‘(II) APPLICANT POOL.—The ap19 plicant pool described in this sub20 clause shall consist of each Indian

21 tribe (or consortium) that—

22 ‘‘(aa) has successfully com23 pleted the planning phase de24 scribed in subclause (III);
8

6

•S 281 IS

1 ‘‘(bb) has requested partici2 pation in the demonstration

3 project under this subparagraph

4 through the adoption of a resolu5 tion or other official action by

6 the tribal governing body; and

7 ‘‘(cc) has demonstrated fi8 nancial stability and financial

9 management capability in accord10 ance with subclause (III) during

11 the 3-fiscal year period imme12 diately preceding the fiscal year

13 for which participation under this

14 subparagraph is being requested.

15 ‘‘(III) CRITERIA FOR DETERMIN16 ING FINANCIAL STABILITY AND FI17 NANCIAL MANAGEMENT CAPACITY.—

18 For the purpose of subclause (II), evi19 dence that, during the 3-year period

20 referred to in subclause (II)(cc), an

21 Indian tribe had no uncorrected sig22 nificant and material audit exceptions

23 in the required annual audit of the In24 dian tribe’s self-determination con25 tracts or self-governance funding
9

7

•S 281 IS

1 agreements with any Federal agency

2 shall be conclusive evidence of the re3 quired stability and capability.

4 ‘‘(IV) PLANNING PHASE.—

5 ‘‘(aa) IN GENERAL.—An In6 dian tribe (or consortium) re7 questing participation in the

8 demonstration project under this

9 subparagraph shall complete a

10 planning phase that shall include

11 legal and budgetary research and

12 internal tribal government and

13 organization preparation.

14 ‘‘(bb) ELIGIBILITY.—A tribe

15 (or consortium) described in item

16 (aa) shall be eligible to receive a

17 grant under this subclause to

18 plan and negotiate participation

19 in a project described in that

20 item.’’.

21 (c) ADMINISTRATION.—Section 202 of title 23,

22 United States Code, is amended by adding at the end the

23 following:

24 ‘‘(f) ADMINISTRATION OF INDIAN RESERVATION

25 ROADS.—
10

8

•S 281 IS

1 ‘‘(1) CONTRACT AUTHORITY.—

2 ‘‘(A) IN GENERAL.—Notwithstanding any

3 other provision of law, for any fiscal year, not

4 more than 6 percent of the contract authority

5 amounts made available from the Highway

6 Trust Fund to the Bureau of Indian Affairs

7 under this title shall be used to pay the admin8 istrative expenses of the Bureau for the Indian

9 reservation roads program (including the ad10 ministrative expenses relating to individual

11 projects that are associated with the program).

12 ‘‘(B) AVAILABILITY.—Amounts made

13 available to pay administrative expenses under

14 subparagraph (A) shall be made available to an

15 Indian tribal government, on the request of the

16 government, to be used for the associated ad17 ministrative functions assumed by the Indian

18 tribe under contracts and agreements entered

19 into under the Indian Self-Determination and

20 Education Assistance Act (25 U.S.C. 450 et

21 seq.).

22 ‘‘(2) HEALTH AND SAFETY ASSURANCES.—Not23 withstanding any other provision of law, an Indian

24 tribe or tribal organization may commence road and

25 bridge construction under the Transportation Equity
11

9

•S 281 IS

1 Act for the 21st Century (Public Law 105–178) that

2 is funded through a contract or agreement under the

3 Indian Self-Determination and Education Assistance

4 Act (25 U.S.C. 450 et seq.) if the Indian tribe or

5 tribal organization has—

6 ‘‘(A) provided assurances in the contract

7 or agreement that the construction will meet or

8 exceed proper health and safety standards;

9 ‘‘(B) obtained the advance review of the

10 plans and specifications from a licensed profes11 sional who has certified that the plans and

12 specifications meet or exceed the proper health

13 and safety standards; and

14 ‘‘(C) provided a copy of the certification

15 under subparagraph (B) to the Director of the

16 Bureau of Indian Affairs.

17 ‘‘(g) SAFETY INCENTIVE GRANTS.—

18 ‘‘(1) SEAT BELT SAFETY INCENTIVE GRANT

19 ELIGIBILITY.—Notwithstanding any other provision

20 of law, an Indian tribe that is eligible to participate

21 in the Indian reservation roads program under sub22 section (d) shall be deemed to be a State for the

23 purpose of being eligible for safety incentive alloca24 tions under section 157 to assist Indian communities
12

10

•S 281 IS

1 in developing innovative programs to promote in2 creased seat belt use rates.

3 ‘‘(2) INTOXICATED DRIVER SAFETY INCENTIVE

4 GRANT ELIGIBILITY.—Notwithstanding any other

5 provision of law, an Indian tribe that is eligible to

6 participate in the Indian reservation roads program

7 under subsection (d) shall be deemed to be a State

8 for the purpose of being eligible for safety incentive

9 grants under section 163 to assist Indian commu10 nities in the prevention of the operation of motor ve11 hicles by intoxicated persons.

12 ‘‘(3) FUNDING PROCEDURES AND ELIGIBILITY

13 CRITERIA.—

14 ‘‘(A) IN GENERAL.—The Secretary, in con15 sultation with Indian tribal governments, may

16 develop funding procedures and eligibility cri17 teria applicable to Indian tribes with respect to

18 allocations or grants described in paragraphs

19 (1) and (2).

20 ‘‘(B) PUBLICATION.—The Secretary shall

21 ensure that procedures or criteria developed

22 under subparagraph (A) are published annually

23 in the Federal Register.’’.
13

11

•S 281 IS

1 TITLE II—TRAINING AND TECH2 NICAL ASSISTANCE FOR NA3 TIVE AMERICANS

4 SEC. 201. SHORT TITLE.

5 This title may be cited as the ‘‘Native American Com6 mercial Driving Training and Technical Assistance Act’’.

7 SEC. 202. PURPOSES.

8 The purposes of this title are—

9 (1) to foster and promote job creation and eco10 nomic opportunities for Native Americans; and

11 (2) to provide education, technical, and training

12 assistance to Native Americans who are interested in

13 commercial vehicle driving careers.

14 SEC. 203. DEFINITIONS.

15 In this title:

16 (1) COMMERCIAL VEHICLE DRIVING.—The term

17 ‘‘commercial vehicle driving’’ means the driving of—

18 (A) a vehicle that is a tractor-trailer truck;

19 or

20 (B) any other vehicle (such as a bus or a

21 vehicle used for the purpose of construction) the

22 driving of which requires a commercial license.

23 (2) INDIAN TRIBE.—The term ‘‘Indian tribe’’

24 has the meaning given the term in section 4 of the
14

12

•S 281 IS

1 Indian Self-Determination and Education Assistance

2 Act (25 U.S.C. 450b).

3 (3) NATIVE AMERICAN.—The term ‘‘Native

4 American’’ means an individual who is a member

5 of—

6 (A) an Indian tribe; or

7 (B) any people or culture that is indige8 nous to the United States, as determined by the

9 Secretary.

10 (4) SECRETARY.—The term ‘‘Secretary’’ means

11 the Secretary of Labor.

12 SEC. 204. COMMERCIAL VEHICLE DRIVING TRAINING PRO13 GRAM.

14 (a) GRANTS.—The Secretary may provide grants, on

15 a competitive basis, to entities described in subsection (b)

16 to support programs providing training and certificates

17 leading to the licensing of Native Americans with respect

18 to commercial vehicle driving.

19 (b) ELIGIBILITY.—To be eligible to receive a grant

20 under subsection (a), an entity shall—

21 (1) be a tribal college or university (as defined

22 in section 316(b)(3) of the Higher Education Act

23 (20 U.S.C. 1059(b)(3)); and
15

13

•S 281 IS

1 (2) prepare and submit to the Secretary an ap2 plication at such time, in such manner, and contain3 ing such information as the Secretary may require.

4 (c) PRIORITY.—In providing grants under subsection

5 (a), the Secretary shall give priority to grant applications

6 that—

7 (1) propose training that exceeds proposed min8 imum standards for training tractor-trailer drivers

9 of the Department of Transportation;

10 (2) propose training that exceeds the entry level

11 truck driver certification standards set by the Pro12 fessional Truck Driver Institute; and

13 (3) propose an education partnership with a

14 private trucking firm, trucking association, or simi15 lar entity in order to ensure the effectiveness of the

16 grant program under this section.

17 (d) AUTHORIZATION OF APPROPRIATIONS.—There

18 are authorized to be appropriated such sums as are nec19 essary to carry out this title.

Æ
16

1

II

108TH CONGRESS

1ST SESSION S. 725

To amend the Transportation Equity Act for the 21st Century to provide

from the Highway Trust Fund additional funding for Indian reservation

roads, and for other purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 27, 2003

Mr. BINGAMAN (for himself, Mrs. FEINSTEIN, Mr. DAYTON, and Mr. LEAHY)

introduced the following bill; which was read twice and referred to the

Committee on Indian Affairs

A BILL

To amend the Transportation Equity Act for the 21st Century to provide from the Highway Trust Fund additional

funding for Indian reservation roads, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Tribal Transportation

5 Program Improvement Act of 2003’’.

6 SEC. 2. FINDINGS AND PURPOSE.

7 (a) FINDINGS.—Congress finds that—
17

2

•S 725 IS

1 (1) because many Indian tribes are located in

2 remote areas, transportation is particularly impor3 tant to the basic quality of life and economic devel4 opment of Indian tribes;

5 (2) safe roads are essential for—

6 (A) Indian children to travel to and from

7 school;

8 (B) sick and elderly individuals to receive

9 basic health care and medical treatment; and

10 (C) food and other necessities to be deliv11 ered to shops and consumers;

12 (3) transportation is critical to the efforts of In13 dian tribes to—

14 (A) sustain robust economies; and

15 (B) attract new jobs and businesses;

16 (4) most Indian tribes lack the basic transpor17 tation systems that other people in the United

18 States take for granted;

19 (5) Indian communities continue to lag behind

20 the rest of the United States in quality of life and

21 economic vitality;

22 (6) unemployment rates in Indian country fre23 quently exceed 50 percent, and poverty rates often

24 exceed 40 percent;
18

3

•S 725 IS

1 (7) the limited availability of housing and jobs

2 on Indian reservations forces people to commute

3 long distances each day to travel to work or school,

4 obtain health care, take advantage of basic govern5 ment services, go shopping, or even obtain drinking

6 water;

7 (8) the Indian reservation roads system estab8 lished under title 23, United States Code, comprises

9 more than 50,000 miles of roads under the jurisdic10 tion of the Bureau of Indian Affairs and tribal,

11 State, county, and local governments;

(9) more than 2 12 ⁄3 of those roads are not paved,

13 and many resemble roads in third-world countries;

14 (10) as of the date of enactment of this Act,

15 approximately 140 of the 753 bridges under the ju16 risdiction of the Bureau of Indian Affairs are rated

17 as being deficient;

18 (11) The Indian reservation roads system

19 serves both Indians and the general public and is

20 part of a unified national road network;

21 (12) even though the Indian reservation roads

22 system is perhaps the most rudimentary of any

23 transportation network in the United States, more

24 than 2,000,000,000 vehicle miles are traveled annu25 ally on the system;
19

4

•S 725 IS

1 (13) the poor quality of so many Indian res2 ervation roads has a serious impact on highway safe3 ty;

4 (14) according to the Federal Highway Admin5 istration, the highway fatality rate on Indian res6 ervation roads is 4 times the national average high7 way fatality rate on all roads;

8 (15) automobile accidents are the primary

9 cause of death for young Indian individuals; and

10 (16) the Federal Highway Administration esti11 mates the backlog of improvement needs for Indian

12 reservation roads at approximately $6,800,000,000.

13 (b) PURPOSE.—The purpose of this Act is to reau14 thorize, expand, and streamline the Indian reservation

15 roads program to improve transportation safety and better

16 meet the needs of Indian individuals and other members

17 of the traveling public.

18 SEC. 3. INDIAN RESERVATION ROADS.

19 (a) AUTHORIZATION OF APPROPRIATIONS.—Section

20 1101(a)(8)(A) of the Transportation Equity Act for the

21 21st Century (112 Stat. 112) is amended by striking ‘‘of

22 such title’’ and all that follows and inserting ‘‘of that

23 title—

24 ‘‘(i) $225,000,000 for fiscal year

25 1998;
20

5

•S 725 IS

1 ‘‘(ii) $275,000,000 for each of fiscal

2 years 1999 through 2003;

3 ‘‘(iii) $350,000,000 for fiscal year

4 2004;

5 ‘‘(iv) $425,000,000 for fiscal year

6 2005; and

7 ‘‘(v) $500,000,000 for each of fiscal

8 years 2006 through 2009.’’.

9 (b) OBLIGATION CEILING.—Section 1102(c)(1) of the

10 Transportation Equity Act for the 21st Century (23

11 U.S.C. 104 note; 112 Stat. 116) is amended—

12 (1) by striking ‘‘distribute obligation’’ and in13 serting the following: ‘‘distribute—

14 ‘‘(A) obligation’’;

15 (2) by inserting ‘‘and’’ after the semicolon at

16 the end; and

17 (3) by adding at the end the following:

18 ‘‘(B) for any fiscal year after fiscal year

19 2003, any amount of obligation authority made

20 available for Indian reservation road bridges

21 under section 202(d)(4), and for Indian res22 ervation roads under section 204, of title 23,

23 United States Code;’’.

24 (c) INDIAN RESERVATION ROAD BRIDGES.—Section

25 202(d)(4) of title 23, United States Code, is amended—
21

6

•S 725 IS

1 (1) in subparagraph (B)—

2 (A) by striking ‘‘(B) RESERVATION.—Of

3 the amounts’’ and all that follows through ‘‘to

4 replace,’’ and inserting the following:

5 ‘‘(B) FUNDING.—

6 ‘‘(i) RESERVATION OF FUNDS.—Not7 withstanding any other provision of law,

8 there is authorized to be appropriated from

9 the Highway Trust Fund $15,000,000 for

10 each of fiscal years 2004 through 2009 to

11 carry out planning, design, engineering,

12 construction, and inspection of projects to

13 replace,’’; and

14 (B) by adding at the end the following:

15 ‘‘(ii) AVAILABILITY.—Funds made

16 available to carry out this subparagraph

17 shall be available for obligation in the same

18 manner as if the funds were apportioned

19 under chapter 1.’’; and

20 (2) in subparagraph (D)—

21 (A) by striking ‘‘(D) APPROVAL REQUIRE22 MENT.—’’ and inserting the following:

23 ‘‘(D) APPROVAL AND NEED REQUIRE24 MENTS.—’’; and
22

7

•S 725 IS

1 (B) by striking ‘‘only on approval of the

2 plans, specifications, and estimates by the Sec3 retary.’’ and inserting ‘‘only—

4 ‘‘(i) on approval by the Secretary of

5 plans, specifications, and estimates relating

6 to the projects; and

7 ‘‘(ii) in amounts directly proportional

8 to the actual need of each Indian reserva9 tion, as determined by the Secretary based

10 on the number of deficient bridges on each

11 reservation and the projected cost of reha12 bilitation of those bridges.’’.

13 (d) FAIR AND EQUITABLE DISTRIBUTION.—Section

14 202(d) of title 23, United States Code, is amended by add15 ing at the end the following:

16 ‘‘(5) FAIR AND EQUITABLE DISTRIBUTION.—To

17 ensure that the distribution of funds to an Indian

18 tribe under this subsection is fair, equitable, and

19 based on valid transportation needs of the Indian

20 tribe, the Secretary shall—

21 ‘‘(A) verify the existence, as of the date of

22 the distribution, of all roads that are part of

23 the Indian reservation road system; and

24 ‘‘(B) distribute funds based only on those

25 roads.’’.
23

8

•S 725 IS

1 (e) INDIAN RESERVATION ROAD PLANNING.—Sec2 tion 204(j) of title 23, United States Code, is amended

3 in the first sentence by striking ‘‘2 percent’’ and inserting

4 ‘‘4 percent’’.

5 SEC. 4. FEDERAL LANDS HIGHWAY PROGRAM DEMONSTRA6 TION PROJECT.

7 Section 202(d)(3) of title 23, United States Code, is

8 amended by adding at the end the following:

9 ‘‘(C) FEDERAL LANDS HIGHWAY PROGRAM

10 DEMONSTRATION PROJECT.—

11 ‘‘(i) IN GENERAL.—The Secretary

12 shall establish a demonstration project

13 under which all funds made available

14 under this title for Indian reservation

15 roads and for highway bridges located on

16 Indian reservation roads as provided for in

17 subparagraph (A) shall be made available,

18 on the request of an affected Indian tribal

19 government, to the Indian tribal govern20 ment for use in carrying out, in accordance

21 with the Indian Self-Determination and

22 Education Assistance Act (25 U.S.C. 450

23 et seq.), contracts and agreements for the

24 planning, research, engineering, and con25 struction described in that subparagraph.
24

9

•S 725 IS

1 ‘‘(ii) EXCLUSION OF AGENCY PARTICI2 PATION.—In accordance with subpara3 graph (B), all funds for Indian reservation

4 roads and for highway bridges located on

5 Indian reservation roads to which clause

6 (i) applies shall be paid without regard to

7 the organizational level at which the Fed8 eral lands highway program has previously

9 carried out the programs, functions, serv10 ices, or activities involved.

11 ‘‘(iii) SELECTION OF PARTICIPATING

12 TRIBES.—

13 ‘‘(I) PARTICIPANTS.—

14 ‘‘(aa) IN GENERAL.—For

15 each fiscal year, the Secretary

16 shall select 12 geographically di17 verse Indian tribes from the ap18 plicant pool described in sub19 clause (II) to participate in the

20 demonstration project carried out

21 under clause (i).

22 ‘‘(bb) CONSORTIA.—Two or

23 more Indian tribes that are oth24 erwise eligible to participate in a

25 program or activity to which this
25

10

•S 725 IS

1 title applies may form a consor2 tium to be considered as a single

3 tribe for the purpose of becoming

4 part of the applicant pool under

5 subclause (II).

6 ‘‘(cc) FUNDING.—An Indian

7 tribe participating in the pilot

8 program under this subpara9 graph shall receive funding in an

10 amount equal to the sum of the

11 funding that the Indian tribe

12 would otherwise receive in ac13 cordance with the funding for14 mula established under the other

15 provisions of this subsection, and

16 an additional percentage of that

17 amount equal to the percentage

18 of funds withheld during the ap19 plicable fiscal year for the road

20 program management costs of

21 the Bureau of Indian Affairs

22 under subsection (f)(1).

23 ‘‘(II) APPLICANT POOL.—The ap24 plicant pool described in this sub-
26

11

•S 725 IS

1 clause shall consist of each Indian

2 tribe (or consortium) that—

3 ‘‘(aa) has successfully com4 pleted the planning phase de5 scribed in subclause (III);

6 ‘‘(bb) has requested partici7 pation in the demonstration

8 project under this subparagraph

9 through the adoption of a resolu10 tion or other official action by

11 the tribal governing body; and

12 ‘‘(cc) has demonstrated fi13 nancial stability and financial

14 management capability in accord15 ance with subclause (III) during

16 the 3-fiscal year period imme17 diately preceding the fiscal year

18 for which participation under this

19 subparagraph is being requested.

20 ‘‘(III) CRITERIA FOR DETERMIN21 ING FINANCIAL STABILITY AND FI22 NANCIAL MANAGEMENT CAPACITY.—

23 For the purpose of subclause (II), evi24 dence that, during the 3-year period

25 referred to in subclause (II)(cc), an
27

12

•S 725 IS

1 Indian tribe had no uncorrected sig2 nificant and material audit exceptions

3 in the required annual audit of the In4 dian tribe’s self-determination con5 tracts or self-governance funding

6 agreements with any Federal agency

7 shall be conclusive evidence of the re8 quired stability and capability.

9 ‘‘(IV) PLANNING PHASE.—

10 ‘‘(aa) IN GENERAL.—An In11 dian tribe (or consortium) re12 questing participation in the

13 demonstration project under this

14 subparagraph shall complete a

15 planning phase that shall include

16 legal and budgetary research and

17 internal tribal government and

18 organization preparation.

19 ‘‘(bb) ELIGIBILITY.—A tribe

20 (or consortium) described in item

21 (aa) shall be eligible to receive a

22 grant under this subclause to

23 plan and negotiate participation

24 in a project described in that

25 item.’’.
28

13

•S 725 IS

1 SEC. 5. TRIBAL TRANSPORTATION SAFETY PROGRAM.

2 (a) IN GENERAL.—Chapter 4 of title 23, United

3 States Code, is amended by adding at the end the follow4 ing:

5 ‘‘§ 412. Tribal Transportation Safety Program

6 ‘‘(a) DEFINITION OF INDIAN TRIBE.—In this section,

7 the term ‘Indian tribe’ has the meaning given the term

8 in section 4 of the Indian Self-Determination and Edu9 cation Assistance Act (25 U.S.C. 450b).

10 ‘‘(b) PROGRAM.—

11 ‘‘(1) IN GENERAL.—The Secretary shall carry

12 out a program to provide to eligible Indian tribes (as

13 determined by the Secretary) competitive grants for

14 use in establishing tribal transportation safety pro15 grams on—

16 ‘‘(A) Indian reservations; and

17 ‘‘(B) other land under the jurisdiction of

18 an Indian tribe.

19 ‘‘(2) USE OF FUNDS.—Funds from a grant pro20 vided under paragraph (1) may be used to carry out

21 a project or activity—

22 ‘‘(A) to prevent the operation of motor ve23 hicles by intoxicated individuals;

24 ‘‘(B) to promote increased seat belt use

25 rates;
29

14

•S 725 IS

1 ‘‘(C) to eliminate hazardous locations on,

2 or hazardous sections or elements of—

3 ‘‘(i) a public road;

4 ‘‘(ii) a public surface transportation

5 facility;

6 ‘‘(iii) a publicly-owned bicycle or pe7 destrian pathway or trail; or

8 ‘‘(iv) a traffic calming measure;

9 ‘‘(D) to eliminate hazards relating to rail10 way-highway crossings; or

11 ‘‘(E) to increase transportation safety by

12 any other means, as determined by the Sec13 retary.

14 ‘‘(c) FEDERAL SHARE.—The Federal share of the

15 cost of carrying out the program under this section shall

16 be 100 percent.

17 ‘‘(d) FUNDING.—Notwithstanding any other provi18 sion of law, there are authorized to be appropriated from

19 the Highway Trust Fund (other than the Mass Transit

20 Account) to carry out this section—

21 ‘‘(1) $10,000,000 for each of fiscal years 2004

22 and 2005;

23 ‘‘(2) $20,000,000 for each of fiscal years 2006

24 and 2007; and
30

15

•S 725 IS

1 ‘‘(3) $30,000,000 for each of fiscal years 2008

2 and 2009.’’.

3 (b) CONFORMING AMENDMENT.—The analysis for

4 chapter 4 of title 23, United States Code, is amended by

5 inserting after the item relating to section 411 the follow6 ing:

‘‘412. Tribal Transportation Safety Program.’’.

7 SEC. 6. INDIAN RESERVATION RURAL TRANSIT PROGRAM.

8 Section 5311 of title 49, United States Code, is

9 amended by adding at the end the following:

10 ‘‘(k) INDIAN RESERVATION RURAL TRANSIT PRO11 GRAM.—

12 ‘‘(1) DEFINITION OF INDIAN TRIBE.—In this

13 subsection, the term ‘Indian tribe’ has the meaning

14 given the term in section 4 of the Indian Self-Deter15 mination and Education Assistance Act (25 U.S.C.

16 450b).

17 ‘‘(2) PROGRAM.—

18 ‘‘(A) IN GENERAL.—The Secretary of

19 Transportation shall establish and carry out a

20 program to provide competitive grants to Indian

21 tribes to establish rural transit programs on

22 reservations or other land under the jurisdiction

23 of the Indian tribes.

24 ‘‘(B) AMOUNT OF GRANTS.—The amount

25 of a grant provided to an Indian tribe under
31

16

•S 725 IS

1 subparagraph (A) shall be based on the need of

2 the Indian tribe, as determined by the Sec3 retary of Transportation.

4 ‘‘(3) FUNDING.—Notwithstanding any other

5 provision of law, for each fiscal year, of the amount

6 made available to carry out this section under sec7 tion 5338 for the fiscal year, the Secretary of Trans8 portation shall use $20,000,000 to carry out this

9 subsection.’’.

10 SEC. 7. SENSE OF CONGRESS REGARDING INDIAN RES11 ERVATION ROADS.

12 (a) FINDINGS.—Congress finds that—

13 (1) the maintenance of roads on Indian reserva14 tions is a responsibility of the Bureau of Indian Af15 fairs;

16 (2) amounts made available by the Federal

17 Government as of the date of enactment of this Act

18 for maintenance of roads on Indian reservations

19 under section 204(c) of title 23, United States Code,

20 comprise only 30 percent of the annual amount of

21 funding needed for maintenance of roads on Indian

22 reservations in the United States; and

23 (3) any amounts made available for construc24 tion of roads on Indian reservations will be wasted

25 if those roads are not properly maintained.
32

17

•S 725 IS

1 (b) SENSE OF CONGRESS.—It is the sense of Con2 gress that Congress should annually provide to the Bureau

3 of Indian Affairs such funding as is necessary to carry

4 out all maintenance of roads on Indian reservations in the

5 United States.

Æ
33

1

II

108TH CONGRESS

1ST SESSION S. 1122

To provide equitable funding for tribal transportation programs, and for

other purposes.

IN THE SENATE OF THE UNITED STATES

MAY 22, 2003

Mr. JOHNSON (for himself and Mr. DASCHLE) introduced the following bill;

which was read twice and referred to the Committee on Indian Affairs

A BILL

To provide equitable funding for tribal transportation

programs, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Tribal Transportation Program Improvement Act of

6 2003’’.

7 (b) TABLE OF CONTENTS.—The table of contents of

8 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purpose.

TITLE I—INDIAN RESERVATION ROADS
34

2

•S 1122 IS

Sec. 101. Funding for Indian reservation roads.

Sec. 102. Federal lands highways program demonstration project.

Sec. 103. Right-of-way agreements.

Sec. 104. Indian reservation road program efficiency improvements.

Sec. 105. Bureau of Indian Affairs and Federal Highway Administration program management funding.

Sec. 106. Deputy Assistant Secretary for Tribal Government Affairs; Indian

Reservation Roads Coordinating Committee.

Sec. 107. Regulations.

TITLE II—ADDITIONAL TRIBAL TRANSPORTATION PROGRAMS

Sec. 201. Tribal scenic byways.

Sec. 202. Tribal transportation safety program.

Sec. 203. Indian reservation rural transit program.

1 SEC. 2. FINDINGS AND PURPOSE.

2 (a) FINDINGS.—Congress finds that—

3 (1) because many Indian tribes are located in

4 remote areas, transportation is particularly impor5 tant to the basic quality of life and economic devel6 opment of Indian tribes;

7 (2) safe roads are essential for—

8 (A) Indian children to travel to and from

9 school;

10 (B) sick and elderly individuals to receive

11 basic health care and medical treatment; and

12 (C) food and other necessities to be deliv13 ered to shops and consumers;

14 (3) transportation is critical to the efforts of In15 dian tribes to—

16 (A) sustain robust economies; and

17 (B) attract new jobs and businesses;
35

3

•S 1122 IS

1 (4) most Indian tribes lack the basic transpor2 tation systems that other people in the United

3 States take for granted;

4 (5) Indian communities continue to lag behind

5 the rest of the United States in quality of life and

6 economic vitality;

7 (6) unemployment rates in Indian country fre8 quently exceed 50 percent, and poverty rates often

9 exceed 40 percent;

10 (7) the limited availability of housing and jobs

11 on Indian reservations forces people to commute

12 long distances each day to travel to work or school,

13 obtain health care, take advantage of basic govern14 ment services, go shopping, or even obtain drinking

15 water;

16 (8) the Indian reservation roads system estab17 lished under title 23, United States Code, comprises

18 more than 50,000 miles of roads under the jurisdic19 tion of the Bureau of Indian Affairs and tribal,

20 State, county, and local governments;

(9) more than 2 21 ⁄3 of those roads are not paved,

22 and many resemble roads in third-world countries;

23 (10) as of the date of enactment of this Act,

24 approximately 140 of the 753 bridges under the ju-
36

4

•S 1122 IS

1 risdiction of the Bureau of Indian Affairs are rated

2 as being deficient;

3 (11) The Indian reservation roads system

4 serves both Indians and the general public and is

5 part of a unified national road network;

6 (12) even though the Indian reservation roads

7 system is perhaps the most rudimentary of any

8 transportation network in the United States, more

9 than 2,000,000,000 vehicle miles are traveled annu10 ally on the system;

11 (13) the poor quality of so many Indian res12 ervation roads has a serious impact on highway safe13 ty;

14 (14) according to the Federal Highway Admin15 istration, the highway fatality rate on Indian res16 ervation roads is 4 times the national average high17 way fatality rate on all roads;

18 (15) automobile accidents are the primary

19 cause of death for young Indian individuals; and

20 (16) the Federal Highway Administration esti21 mates the backlog of improvement needs for Indian

22 reservation roads at approximately $6,800,000,000.

23 (b) PURPOSE.—The purpose of this Act is to reau24 thorize, expand, and streamline the Indian reservation

25 roads program to improve transportation safety and better
37

5

•S 1122 IS

1 meet the needs of Indian individuals and other members

2 of the traveling public.

3 TITLE I—INDIAN RESERVATION

4 ROADS

5 SEC. 101. FUNDING FOR INDIAN RESERVATION ROADS.

6 (a) AUTHORIZATION OF APPROPRIATIONS.—Section

7 1101(a)(8)(A) of the Transportation Equity Act for the

8 21st Century (112 Stat. 112) is amended—

9 (1) by striking ‘‘For’’ and inserting the follow10 ing:

11 ‘‘(i) IN GENERAL.—Subject to clause

12 (ii), for’’; and

13 (2) by striking ‘‘of such title’’ and all that fol14 lows and inserting ‘‘of that title—

15 ‘‘(I) $225,000,000 for fiscal year

16 1998;

17 ‘‘(II) $275,000,000 for each of

18 fiscal years 1999 through 2003;

19 ‘‘(III) $550,000,000 for fiscal

20 year 2004,;

21 ‘‘(IV) $625,000,000 for fiscal

22 year 2005; and

23 ‘‘(V) $725,000,000 for each of

24 fiscal years 2006 through 2009.’’; and

25 (3) by adding at the end the following:
38

6

•S 1122 IS

1 ‘‘(ii) MAINTENANCE.—Of the amounts

2 made available for each fiscal year under

3 subclauses (III) through (V) of clause (i),

4 not less than $100,000,000 shall be

5 used—

6 ‘‘(I) to maintain roads on Indian

7 reservations in the United States; and

8 ‘‘(II) to maintain tribal transpor9 tation facilities serving Indian reserva10 tions and other tribal communities in

11 the United States.’’.

12 (b) OBLIGATION CEILING.—Section 1102(c)(1) of the

13 Transportation Equity Act for the 21st Century (23

14 U.S.C. 104 note; 112 Stat. 116) is amended—

15 (1) by striking ‘‘distribute obligation’’ and in16 serting the following: ‘‘distribute—

17 ‘‘(A) obligation’’;

18 (2) by inserting ‘‘and’’ after the semicolon at

19 the end; and

20 (3) by adding at the end the following:

21 ‘‘(B) for any fiscal year after fiscal year

22 2003, any amount of obligation authority made

23 available for Indian reservation road bridges

24 under section 202(d)(4), and for Indian res-
39

7

•S 1122 IS

1 ervation roads under section 204, of title 23,

2 United States Code;’’.

3 (c) INDIAN RESERVATION ROAD BRIDGES.—Section

4 202(d)(4) of title 23, United States Code, is amended—

5 (1) in subparagraph (B)—

6 (A) by striking ‘‘(B) RESERVATION.—Of

7 the amounts’’ and all that follows through ‘‘to

8 replace,’’ and inserting the following:

9 ‘‘(B) FUNDING.—

10 ‘‘(i) RESERVATION OF FUNDS.—Not11 withstanding any other provision of law,

12 there is authorized to be appropriated from

13 the Highway Trust Fund $15,000,000 for

14 each of fiscal years 2004 through 2009 to

15 carry out planning, design, engineering,

16 construction, and inspection of projects to

17 replace,’’; and

18 (B) by adding at the end the following:

19 ‘‘(ii) AVAILABILITY.—Funds made

20 available to carry out this subparagraph

21 shall be available for obligation in the same

22 manner as if the funds were apportioned

23 under chapter 1.’’; and

24 (2) by striking subparagraph (D) and inserting

25 the following:
40

8

•S 1122 IS

1 ‘‘(D) APPROVAL AND NEED REQUIRE2 MENTS.—

3 ‘‘(i) PRELIMINARY ENGINEERING.—

4 Funds for preliminary engineering for In5 dian reservation road bridge projects under

6 this subsection may be made available by

7 the Secretary on receipt of a request

8 from—

9 ‘‘(I) an Indian tribe; or

10 ‘‘(II) the Secretary of the Inte11 rior.

12 ‘‘(ii) CONSTRUCTION.—Funds for con13 struction of Indian reservation road bridge

14 projects under this subsection shall be

15 made available by the Secretary only—

16 ‘‘(I) after approval by the Sec17 retary of plans, specifications, and es18 timates relating to the projects; and

19 ‘‘(II) in amounts directly propor20 tional to the actual need of each In21 dian reservation, as determined by the

22 Secretary based on the number of de23 ficient bridges on each reservation and

24 the projected cost of rehabilitation of

25 those bridges.’’.
41

9

•S 1122 IS

1 (d) INDIAN RESERVATION ROAD PLANNING.—Sec2 tion 204(j) of title 23, United States Code, is amended

3 in the first sentence by striking ‘‘2 percent’’ and inserting

4 ‘‘5 percent’’.

5 SEC. 102. FEDERAL LANDS HIGHWAYS PROGRAM DEM6 ONSTRATION PROJECT.

7 Section 202(d)(3) of title 23, United States Code, is

8 amended by adding at the end the following:

9 ‘‘(C) FEDERAL LANDS HIGHWAY PROGRAM

10 DEMONSTRATION PROJECT.—

11 ‘‘(i) IN GENERAL.—The Secretary

12 shall establish a demonstration project

13 under which all funds made available

14 under this title for Indian reservation

15 roads and for highway bridges located on

16 Indian reservation roads as provided for in

17 subparagraph (A) shall be made available,

18 on the request of an affected Indian tribal

19 government, to the Indian tribal govern20 ment for use in carrying out, in accordance

21 with the Indian Self-Determination and

22 Education Assistance Act (25 U.S.C. 450

23 et seq.), contracts and agreements for the

24 planning, research, engineering, and con25 struction described in that subparagraph.
42

10

•S 1122 IS

1 ‘‘(ii) EXCLUSION OF AGENCY PARTICI2 PATION.—In accordance with subpara3 graph (B), all funds for Indian reservation

4 roads and for highway bridges located on

5 Indian reservation roads to which clause

6 (i) applies shall be paid without regard to

7 the organizational level at which the Fed8 eral lands highway program has previously

9 carried out the programs, functions, serv10 ices, or activities involved.

11 ‘‘(iii) SELECTION OF PARTICIPATING

12 TRIBES.—

13 ‘‘(I) PARTICIPANTS.—

14 ‘‘(aa) IN GENERAL.—For

15 each fiscal year, the Secretary

16 shall select 12 geographically di17 verse Indian tribes from the ap18 plicant pool described in sub19 clause (II) to participate in the

20 demonstration project carried out

21 under clause (i).

22 ‘‘(bb) CONSORTIA.—Two or

23 more Indian tribes that are oth24 erwise eligible to participate in a

25 program or activity to which this
43

11

•S 1122 IS

1 title applies may form a consor2 tium to be considered as a single

3 Indian tribe for the purpose of

4 becoming part of the applicant

5 pool under subclause (II).

6 ‘‘(cc) FUNDING.—An Indian

7 tribe participating in the pilot

8 program under this subpara9 graph shall receive funding in an

10 amount equal to the sum of the

11 funding that the Indian tribe

12 would otherwise receive in ac13 cordance with the funding for14 mula established under the other

15 provisions of this subsection, and

16 an additional percentage of that

17 amount equal to the percentage

18 of funds withheld during the ap19 plicable fiscal year for the road

20 program management costs of

21 the Bureau of Indian Affairs

22 under subsection (f)(1).

23 ‘‘(II) APPLICANT POOL.—The ap24 plicant pool described in this sub-
44

12

•S 1122 IS

1 clause shall consist of each Indian

2 tribe (or consortium) that—

3 ‘‘(aa) has successfully com4 pleted the planning phase de5 scribed in subclause (III);

6 ‘‘(bb) has requested partici7 pation in the demonstration

8 project under this subparagraph

9 through the adoption of a resolu10 tion or other official action by

11 the tribal governing body; and

12 ‘‘(cc) has demonstrated fi13 nancial stability and financial

14 management capability in accord15 ance with subclause (III) during

16 the 3-fiscal year period imme17 diately preceding the fiscal year

18 for which participation under this

19 subparagraph is being requested.

20 ‘‘(III) CRITERIA FOR DETERMIN21 ING FINANCIAL STABILITY AND FI22 NANCIAL MANAGEMENT CAPACITY.—

23 For the purpose of subclause (II), evi24 dence that, during the 3-year period

25 referred to in subclause (II)(cc), an
45

13

•S 1122 IS

1 Indian tribe had no uncorrected sig2 nificant and material audit exceptions

3 in the required annual audit of the In4 dian tribe’s self-determination con5 tracts or self-governance funding

6 agreements with any Federal agency

7 shall be conclusive evidence of the re8 quired stability and capability.

9 ‘‘(IV) PLANNING PHASE.—

10 ‘‘(aa) IN GENERAL.—An In11 dian tribe (or consortium) re12 questing participation in the

13 demonstration project under this

14 subparagraph shall complete a

15 planning phase that shall include

16 legal and budgetary research and

17 internal tribal government and

18 organization preparation.

19 ‘‘(bb) ELIGIBILITY.—A tribe

20 (or consortium) described in item

21 (aa) shall be eligible to receive a

22 grant under this subclause to

23 plan and negotiate participation

24 in a project described in that

25 item.’’.
46

14

•S 1122 IS

1 SEC. 103. RIGHT-OF-WAY AGREEMENTS.

2 Section 202(d) of title 23, United States Code, is

3 amended by adding at the end the following:

4 ‘‘(5) RIGHT-OF-WAY AGREEMENTS.—

5 ‘‘(A) IN GENERAL.—Notwithstanding any

6 other provision of law, an Indian tribe or tribal

7 organization shall not be subject to part 169 of

8 title 25, Code of Federal Regulations (or a suc9 cessor regulation), in carrying out an Indian

10 reservation road under this title in accordance

11 with a contract or agreement entered into

12 under the Indian Self-Determination and Edu13 cation Assistance Act (25 U.S.C. 450b et seq.).

14 ‘‘(B) CRITERIA.—The Secretary shall es15 tablish criteria for right-of-way agreements de16 veloped by an Indian tribe or tribal organization

17 under this subsection in accordance with regula18 tions promulgated under section 153.’’.

19 SEC. 104. INDIAN RESERVATION ROAD PROGRAM EFFI20 CIENCY IMPROVEMENTS.

21 (a) TRIBAL FLEXIBILITY AND INNOVATIVE FINANC22 ING.—Section 115 of title 23, United States Code, is

23 amended by adding at the end the following:

24 ‘‘(d) TRIBAL RECEIPT OF ADVANCE CONSTRUCTION

25 FUNDS.—
47

15

•S 1122 IS

1 ‘‘(1) IN GENERAL.—Notwithstanding any other

2 provision of law, an Indian tribe or tribal organiza3 tion that is eligible to participate in an Indian res4 ervation road program under section 202(d) shall be

5 eligible to receive advance construction funds for the

6 programs identified in subsection (a) for use for

7 projects on the Indian reservation road program sys8 tem.

9 ‘‘(2) STATUS.—An eligible Indian tribe or tribal

10 organization described in paragraph (1) shall be con11 sidered to be a State for the purpose of this sec12 tion.’’.

13 (b) EMERGENCY FUNDS.—Section 125(e) of title 23,

14 United States Code, is amended—

15 (1) by striking ‘‘(e) The Secretary’’ and insert16 ing the following:

17 ‘‘(e) EMERGENCY FUNDS.—

18 ‘‘(1) IN GENERAL.—The Secretary’’; and

19 (2) by adding at the end the following:

20 ‘‘(2) APPLICATIONS FOR EMERGENCY FUNDS.—

21 ‘‘(A) IN GENERAL.—Notwithstanding any

22 other provision of law—

23 ‘‘(i) an Indian tribal government may

24 submit directly to the Secretary an applica25 tion for emergency funds for the repair or
48

16

•S 1122 IS

1 reconstruction of Indian reservation roads

2 and other tribal transportation facilities;

3 and

4 ‘‘(ii) the Secretary shall process the

5 application in the same manner in which

6 similar applications from Federal agencies

7 are processed.

8 ‘‘(B) CRITERIA.—The Secretary shall de9 velop criteria for emergency funds applications

10 under this subsection in accordance with regula11 tions promulgated in accordance with section

12 135.’’.

13 (c) PAYMENTS ON FEDERAL-AID PROJECTS UNDER14 TAKEN BY A FEDERAL AGENCY OR INDIAN TRIBE.—Sec15 tion 132 of title 23, United States Code, is amended—

16 (1) in the first sentence, by striking ‘‘Where’’

17 and inserting the following:

18 ‘‘(1) IN GENERAL.—If’’;

19 (2) in the second sentence, by striking ‘‘Upon’’

20 and inserting the following:

21 ‘‘(2) ADJUSTMENT.—On’’;

22 (3) in the last sentence, by striking ‘‘Any’’ and

23 inserting the following:

24 ‘‘(3) CREDITING OF FUNDS.—Any’’; and

25 (4) by adding at the end the following:
49

17

•S 1122 IS

1 ‘‘(d) DIRECT PERFORMANCE OF DESIGN ON CON2 STRUCTION ACTIVITIES.—

3 ‘‘(1) IN GENERAL.—If the Federal-aid project

4 affects a tribal transportation facility, the State

5 shall consult with the affected Indian tribe to deter6 mine whether the Indian tribe is interested in di7 rectly performing design or construction activities on

8 all or a portion of the Federal-aid project.

9 ‘‘(2) DEPOSIT WITH OR PAYMENT TO FEDERAL

10 AGENCY.—If an agreement is reached between the

11 State and the affected Indian tribe, the State shall

12 make a deposit with or payment to the appropriate

13 Federal agency to permit the Indian tribe to carry

14 out design or construction activities on the Federal15 aid project in accordance with a funding agreement

16 authorized under the Indian Self-Determination and

17 Education Assistance Act (25 U.S.C. 450 et seq.).

18 ‘‘(3) FEDERAL SHARE.—If the State elects to

19 directly perform design or construction activities

20 under paragraph (1), the Federal share payable for

21 the Federal-aid project shall be 100 percent.’’.

22 (d) SURFACE TRANSPORTATION PROGRAM.—Section

23 133(c) of title 23, United States Code, is amended by in24 serting ‘‘are a tribal transportation facility or’’ after ‘‘un25 less such roads.’’
50

18

•S 1122 IS

1 (e) SCOPE OF AUTHORITY.—Section 202(d)(3)(B) of

2 title 23, United States Code, is amended—

3 (1) by striking ‘‘(B) EXCLUSION OF AGENCY

4 PARTICIPATION.—Funds for’’ and inserting the fol5 lowing:

6 ‘‘(B) EXCLUSION OF AGENCY PARTICIPA7 TION.—

8 ‘‘(i) IN GENERAL.—Funds for’’; and

9 (2) by adding at the end the following:

10 ‘‘(ii) ASSUMPTION OF RESPONSIBIL11 ITY.—In accordance with this subpara12 graph, and notwithstanding any other pro13 vision of law, an Indian tribe or tribal or14 ganization may assume responsibility for

15 any program, function, service, or activity

16 under this subsection (other than any pro17 gram, function, service, or activity that, as

18 determined by the Secretary, is inherently

19 Federal and cannot be legally transferred)

20 in accordance with a contract or agreement

21 under title I or title IV of the Indian Self22 Determination and Education Assistance

23 Act (25 U.S.C. 450b et seq.).

24 ‘‘(iii) DISPUTE OVER TRANSFER25 ABILITY.—In the event of a disagreement
51

19

•S 1122 IS

1 between the Secretary and an Indian tribe

2 or tribal organization over whether a par3 ticular program, function, service or activ4 ity may be lawfully transferred in accord5 ance with clause (ii), the Indian tribe or

6 tribal organization may pursue all alter7 native dispute resolution and appeal proce8 dures authorized by the Indian Self-Deter9 mination and Education Assistance Act

10 (25 U.S.C. 450b et seq.).’’.

11 (f) ADVANCE FUNDING AND USE OF SAVINGS.—Sec12 tion 202(d) of title 23, United States Code, (as amended

13 by section 103) is amended by adding at the end the fol14 lowing:

15 ‘‘(6) ADVANCE FUNDING.—Notwithstanding

16 any other provision of law (including an interagency

17 agreement), all funds made available to an Indian

18 tribal government or tribal organization under para19 graph (3) shall be provided as advance payments, in

20 the form of annual or semiannual installments at the

21 discretion of the Indian tribe or tribal organization.

22 ‘‘(7) USE OF SAVINGS AND PROGRAM IN23 COME.—Notwithstanding any other provision of law

24 (including an interagency agreement), all funds

25 made available to an Indian tribal government or
52

20

•S 1122 IS

1 tribal organization in accordance with paragraph (3)

2 for a fiscal year that are unexpended at the end of

3 the fiscal year, including any program income

4 earned by the Indian tribe or tribal organization as

5 a result of carrying out the contract or agreement—

6 ‘‘(A) shall be used by the Indian tribe or

7 tribal organization to provide additional services

8 or benefits under the contract or agreement;

9 and

10 ‘‘(B) shall not be a basis for reducing the

11 amount of funds provided to the Indian tribe or

12 tribal organization in future years.’’.

13 (g) APPROVAL OF PLANS, SPECIFICATIONS, AND ES14 TIMATES.—Section 202 of title 23, United States Code,

15 is amended by adding at the end the following:

16 ‘‘(f) APPROVAL OF PLANS, SPECIFICATIONS, AND ES17 TIMATES.—

18 ‘‘(1) IN GENERAL.—Notwithstanding any other

19 provision of law, an Indian tribe or tribal organiza20 tion may approve plans, specifications, and esti21 mates, and commence road and bridge construction

22 under this section, that are funded through a con23 tract or agreement under the Indian Self-Determina24 tion and Education Assistance Act (25 U.S.C. 450b

25 et seq.), if the Indian tribe or tribal organization—
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21

•S 1122 IS

1 ‘‘(A) provides assurances in the contract or

2 agreement that the construction will meet or ex3 ceed applicable health and safety standards;

4 ‘‘(B) obtains the advance review of the

5 plans and specifications from a licensed profes6 sional who has certified that the plans and

7 specifications meet or exceed applicable health

8 and safety standards; and

9 ‘‘(C) provides a copy of the certification

10 under subparagraph (B) to the Assistant Sec11 retary for Indian Affairs.

12 ‘‘(2) CONTRACT TO SERVE AS STEWARDSHIP

13 AGREEMENT.—Notwithstanding any other provision

14 of law, an Indian tribe or tribal organization may

15 carry out any program, function, service, or activity

16 of an Indian reservation road program under this

17 section, including any program, function, service, or

18 activity that, before the date of enactment of this

19 subsection, was the subject of a stewardship agree20 ment executed in accordance with the terms of a

21 contract or agreement entered into under the Indian

22 Self-Determination and Education Assistance Act

23 (25 U.S.C. 450b et seq.).’’.
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22

•S 1122 IS

1 (h) TRANSPORTATION IMPROVEMENT PROGRAM.—

2 Section 204(a) of title 23, United States Code, is amended

3 by striking paragraph (3) and inserting the following:

4 ‘‘(3) APPROVAL OF TRANSPORTATION IMPROVE5 MENT PROGRAM.—

6 ‘‘(A) IN GENERAL.—To be effective, the

7 transportation improvement program developed

8 as a part of the transportation planning process

9 under this section shall be approved by the Sec10 retary.

11 ‘‘(B) FREQUENCY OF UPDATES.—The Sec12 retary of the Interior shall provide to the Sec13 retary an updated tribal transportation im14 provement program—

15 ‘‘(i) on a quarterly basis; or

16 ‘‘(ii) more frequently, as necessary.

17 ‘‘(C) MODIFICATIONS.—If an Indian tribe

18 requests a modification of the tribal transpor19 tation improvement program of the Indian

20 tribe, the Secretary of the Interior shall com21 plete any pending update under subparagraph

22 (B) not later than 45 days after the date of re23 ceipt of the request, except in unusual cir24 cumstances, as determined by the Secretary of

25 the Interior.’’.
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23

•S 1122 IS

1 (i) ELIGIBILITY; CONTRACT SUPPORT FUNDING.—

2 Section 204 of title 23, United States Code, is amended

3 by striking subsection (c) and inserting the following:

4 ‘‘(c) APPROVAL OF PROJECTS.—

5 ‘‘(1) IN GENERAL.—Before approving as a

6 project on an Indian reservation road in a State any

7 project eligible to receive funds apportioned under

8 section 104 or 144, the Secretary shall determine

9 that the obligation of funds for the project is—

10 ‘‘(A) supplementary to, and not in lieu of,

11 the obligation for projects on Indian reservation

12 roads; and

13 ‘‘(B) a fair and equitable share of funds

14 apportioned to the State under section 104.

15 ‘‘(2) SET-ASIDE FOR SHORTAGES.—

16 ‘‘(A) IN GENERAL.—Of the amounts made

17 available for each fiscal year from the Highway

18 Trust Fund for Indian reservation road pro19 grams under this section, not more than

20 $10,000,000 may be used to mitigate the short21 age in amounts available for obligation by con22 tracting or compacting Secretaries under the

23 Indian Self-Determination and Education As24 sistance Act (25 U.S.C. 450b et seq.) to provide

25 contract support cost funding to Indian tribes
56

24

•S 1122 IS

1 and tribal organizations with respect to the ad2 ministration by the Indian tribes and tribal or3 ganizations of services, functions, and activities,

4 of Indian reservation road programs under self5 determination contracts and self-government

6 agreements.

7 ‘‘(B) REPORT.—For each fiscal year, the

8 Secretary of the Interior shall submit to Con9 gress a report that describes the total amount

10 of funds made available under subparagraph

11 (A) for the fiscal year that were used to miti12 gate the shortages described in subparagraph

13 (A).

14 ‘‘(3) ROAD SEALING PROJECTS.—

15 ‘‘(A) IN GENERAL.—Notwithstanding any

16 other provision of this title, the Bureau of In17 dian Affairs, in carrying out a tribal transpor18 tation program under the jurisdiction of the

19 Bureau of Indian Affairs, may expend not more

20 than 15 percent of the funds apportioned for

21 the tribal transportation program from the

22 Highway Trust Fund for each fiscal year to

23 carry out road sealing projects.

24 ‘‘(B) RESPONSIBILITY.—The Bureau of

25 Indian Affairs be responsible for road mainte-
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25

•S 1122 IS

1 nance programs on Indian reservations, includ2 ing the responsibility to make annual funding

3 requests.’’.

4 SEC. 105. BUREAU OF INDIAN AFFAIRS AND FEDERAL

5 HIGHWAY ADMINISTRATION PROGRAM MAN6 AGEMENT FUNDING.

7 Section 202 of title 23, United States Code (as

8 amended by section 104(g)), is amended by adding at the

9 end the following:

10 ‘‘(g) TRIBAL TRANSPORTATION.—

11 ‘‘(1) BUREAU OF INDIAN AFFAIRS.—Notwith12 standing any other provision of law, the Secretary

13 shall not deduct from any apportionment of funds

14 made available for tribal transportation purposes to

15 an Indian tribe or tribal organization under the In16 dian Self-Determination and Education Assistance

17 Act (25 U.S.C. 450b et seq.), any administrative ex18 penses incurred by the Bureau of Indian Affairs re19 lating to individual projects carried out by the In20 dian tribe or tribal organization in accordance with

21 a contract or agreement under that Act.

22 ‘‘(2) PROGRAM MANAGEMENT AND ADMINISTRA23 TIVE EXPENSE REPORTS.—Not later than November

24 30, 2004, and annually thereafter, the Assistant

25 Secretary for Indian Affairs and the Director of the
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26

•S 1122 IS

1 Federal Highway Administration shall submit to

2 Congress a report that describes, for the fiscal year

3 preceding the fiscal year in which the report is sub4 mitted, line item and narrative summaries of the

5 use, by each of the Bureau of Indian Affairs and

6 the Federal Highway Administration, of funds asso7 ciated with the program management and adminis8 trative expenses of Indian reservation road pro9 grams.’’.

10 SEC. 106. DEPUTY ASSISTANT SECRETARY FOR TRIBAL

11 GOVERNMENT AFFAIRS; INDIAN RESERVA12 TION ROADS COORDINATING COMMITTEE.

13 (a) IN GENERAL.—Chapter 3 of title 23, United

14 States Code, is amended by adding at the end the follow15 ing:

16 ‘‘§ 325. Deputy Assistant Secretary for Tribal Govern17 ment Affairs

18 ‘‘(a) ESTABLISHMENT OF POSITION.—

19 ‘‘(1) IN GENERAL.—There is established in the

20 Office of the Secretary of Transportation the posi21 tion of Deputy Assistant Secretary for Tribal Gov22 ernmental Affairs (referred to in this section as the

23 ‘Deputy’).

24 ‘‘(2) APPOINTMENT.—The Deputy shall be ap25 pointed by the Secretary.
59

27

•S 1122 IS

1 ‘‘(b) RESPONSIBILITIES.—The Deputy shall—

2 ‘‘(1) plan, coordinate, and implement policy and

3 programs of the Department of Transportation that

4 serve Indian tribes and tribal organizations;

5 ‘‘(2) coordinate Indian reservation road pro6 grams and activities in all branches and administra7 tions of the Department of Transportation;

8 ‘‘(3) participate in any negotiated rulemaking

9 relating to, or having an impact on, projects, pro10 grams, or funding associated with the Indian res11 ervation roads program; and

12 ‘‘(4) serve as a member of the Joint Indian

13 Reservation Roads Coordinating Committee estab14 lished under section 326(a).

15 ‘‘§ 326. Indian Reservation Roads Coordinating Com16 mittee

17 ‘‘(a) IN GENERAL.—Using funds made available to

18 the Secretary and the Secretary of the Interior under this

19 title, not later than 180 days after the date of enactment

20 of this section, the Secretary and the Secretary of the In21 terior shall establish a Joint Indian Reservation Roads Co22 ordinating Committee (referred to in this section as the

23 ‘Committee’).
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28

•S 1122 IS

1 ‘‘(b) PURPOSE.—The Committee shall assist the Sec2 retary in carrying out the goals and purposes of this title

3 with respect to Indian reservation roads.

4 ‘‘(c) COMPOSITION.—The Committee shall be com5 posed of—

6 ‘‘(1) the Deputy Assistant Secretary for Tribal

7 Governmental Affairs appointed under section

8 325(a)(2); and

9 ‘‘(2) such other members as the Secretary may

10 appoint after consultation with interested Indian

11 tribes through the negotiated rulemaking committee

12 established under section 202(d)(2)(B).’’.

13 (b) CONFORMING AMENDMENT.—The analysis for

14 chapter 3 of title 21 is amended by inserting after the

15 item relating to section 324 the following:

‘‘325. Deputy Assistant Secretary for Tribal Government Affairs.

‘‘326. Indian Reservation Roads Coordinating Committee.’’.

16 SEC. 107. REGULATIONS.

17 Section 202(d)(2) of title 23, United States Code, is

18 amended—

19 (1) by striking subparagraphs (B) and (C);

20 (2) by redesignating subparagraph (D) as sub21 paragraph (H); and

22 (3) by inserting after subparagraph (A) the fol23 lowing:
61

29

•S 1122 IS

1 ‘‘(B) REGULATIONS.—The Secretary and

2 the Secretary of the Interior shall promulgate

3 joint regulations governing the Indian reserva4 tion road programs carried out under this sub5 section by establishing a negotiated rulemaking

6 committee in accordance with sections 563(a)

7 and 565(a) of title 5.

8 ‘‘(C) NEGOTIATED RULEMAKING COMMIT9 TEE.—In establishing a negotiated rulemaking

10 committee under subparagraph (B), the Sec11 retary of the Interior and Secretary of Trans12 portation shall—

13 ‘‘(i) apply the procedures established

14 under subchapter III of chapter 5 of title

15 5 in a manner that reflects the unique gov16 ernment-to-government relationship be17 tween the Indian tribes and the United

18 States; and

19 ‘‘(ii) ensure that membership of the

20 committee includes only representatives

21 of—

22 ‘‘(I) the Federal Government;

23 and
62

30

•S 1122 IS

1 ‘‘(II) geographically diverse

2 small, medium, and large Indian

3 tribes.

4 ‘‘(D) EXPIRATION OF RULEMAKING AU5 THORITY.—The authority of the Secretary and

6 the Secretary of the Interior to promulgate reg7 ulations under subparagraph (B) terminates on

8 the date that is 20 months after the date of en9 actment of the Tribal Transportation Program

10 Improvement Act of 2003.

11 ‘‘(E) ADVISORY ENTITIES.—Notwithstand12 ing any other provision of law, the Secretary

13 and the Secretary of the Interior may jointly es14 tablish and fund such interagency committees

15 or other interagency entities (including advisory

16 entities comprised of tribal representatives) as

17 are appropriate to carry out this paragraph.

18 ‘‘(F) FUNDING PROCEDURES AND ELIGI19 BILITY CRITERIA.—Not later than 180 days

20 after funds are made available for fiscal year

21 2004 to carry out Indian reservation road pro22 grams under this subsection, the Secretary and

23 the Secretary of the Interior shall jointly, in

24 consultation with Indian tribal governments—
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31

•S 1122 IS

1 ‘‘(i) develop funding procedures and

2 eligibility criteria applicable to Indian

3 tribes and tribal organizations with respect

4 to allocations and grants authorized under

5 this title; and

6 ‘‘(ii) publish in the Federal Register a

7 description of the procedures and criteria.

8 ‘‘(G) COORDINATION OF INDIAN INTER9 MODAL TRANSPORTATION PROGRAMS.—In pro10 mulgating regulations to carry out section 204

11 and other applicable provisions of law, the Sec12 retary may coordinate and centralize the admin13 istration of Indian intermodal transportation

14 programs to ensure that the purposes of the

15 programs are achieved.’’.

16 TITLE II—ADDITIONAL TRIBAL

17 TRANSPORTATION PROGRAMS

18 SEC. 201. TRIBAL SCENIC BYWAYS.

19 (a) IN GENERAL.—Section 162(a) of title 23, United

20 States Code, is amended by adding at the end the follow21 ing:

22 ‘‘(4) TRIBAL SCENIC BYWAYS COMPONENT.—

23 ‘‘(A) DEFINITION OF NATIVE VILLAGE.—

24 In this paragraph, the term ‘Native village’ has

25 the meaning given the term in section 3 of the
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32

•S 1122 IS

1 Alaska Native Claims Settlement Act (43

2 U.S.C. 1602).

3 ‘‘(B) ESTABLISHMENT.—In recognition of

4 roads and highways that provide access to, or

5 possess significant cultural, historical, rec6 reational, or scenic value within, Indian commu7 nities and Native villages, the Secretary shall

8 carry out a tribal scenic byways component

9 within the national scenic byways program.

10 ‘‘(C) DESIGNATION OF TRIBAL SCENIC BY11 WAYS.—The Secretary shall designate as tribal

12 scenic byways roads or bridges that—

13 ‘‘(i) have been nominated for designa14 tion as a National Scenic Byway or All15 American Road by the Secretary of the In16 terior, in consultation with affected tribal

17 governments; and

18 ‘‘(ii) as determined by the Secretary—

19 ‘‘(I) qualify as tribal transpor20 tation facilities, as determined by the

21 Secretary; and

22 ‘‘(II) possess outstanding cul23 tural, historical, recreational, or scenic

24 qualities within Indian communities

25 and Native villages.
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33

•S 1122 IS

1 ‘‘(D) INCLUSION AS NATIONAL SCENIC BY2 WAYS OR ALL-AMERICAN ROADS.—After des3 ignation of a road or bridge as a tribal scenic

4 byway under subparagraph (C), the Secretary

5 may accept a road or bridge for inclusion in the

6 registry of National Scenic Byways or All7 American Roads.

8 ‘‘(E) FUNDING AGREEMENTS.—Notwith9 standing any other provision of law, an Indian

10 tribe or tribal organization that receives a grant

11 or technical assistance under subsection (b) for

12 a tribal scenic byway may administer that grant

13 or assistance in accordance with a funding

14 agreement between the Indian tribe or tribal or15 ganization and the Secretary of the Interior

16 under the Indian Self-Determination and Edu17 cation Assistance Act (25 U.S.C. 450 et seq.)

18 that is in effect as of the date of provision of

19 the grant or assistance.’’.

20 (b) CONFORMING AMENDMENTS.—

21 (1) Section 162(b) of title 23, United States

22 Code, is amended—

23 (A) in paragraph (1), by striking ‘‘States

24 to—’’ and inserting ‘‘States and Indian tribes

25 to—’’; and
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34

•S 1122 IS

1 (B) in paragraph (2)—

2 (i) in subparagraph (B), by striking

3 ‘‘and’’ at the end;

4 (ii) in subparagraph (C), by striking

5 the period at the end and inserting ‘‘;

6 and’’; and

7 (iii) by adding at the end the follow8 ing:

9 ‘‘(D) each eligible project that qualifies as

10 a tribal transportation facility, as determined

11 by the Secretary.’’.

12 (2) Section 162(c) of title 23, United States

13 Code, is amended—

14 (A) in paragraph (3), by inserting ‘‘tribal

15 scenic byway,’’ after ‘‘State scenic byway,’’; and

16 (B) by adding at the end the following:

17 ‘‘(9) An activity relating to the planning, de18 sign, construction or development of a tribal scenic

19 byway program or project.’’.

20 SEC. 202. TRIBAL TRANSPORTATION SAFETY PROGRAM.

21 (a) IN GENERAL.—Chapter 4 of title 23, United

22 States Code, is amended by adding at the end the follow23 ing:
67

35

•S 1122 IS

1 ‘‘§ 412. Tribal transportation safety program

2 ‘‘(a) DEFINITION OF INDIAN TRIBE.—In this section,

3 the term ‘Indian tribe’ has the meaning given the term

4 in section 4 of the Indian Self-Determination and Edu5 cation Assistance Act (25 U.S.C. 450b).

6 ‘‘(b) PROGRAM.—

7 ‘‘(1) IN GENERAL.—The Secretary shall carry

8 out a program to provide to eligible Indian tribes (as

9 determined by the Secretary) competitive grants for

10 use in establishing tribal transportation safety pro11 grams on—

12 ‘‘(A) Indian reservations; and

13 ‘‘(B) other land under the jurisdiction of

14 an Indian tribe.

15 ‘‘(2) USE OF FUNDS.—Funds from a grant pro16 vided under paragraph (1) may be used to carry out

17 a project or activity—

18 ‘‘(A) to prevent the operation of motor ve19 hicles by intoxicated individuals;

20 ‘‘(B) to promote increased seat belt use

21 rates;

22 ‘‘(C) to eliminate hazardous locations on,

23 or hazardous sections or elements of—

24 ‘‘(i) a public road;

25 ‘‘(ii) a public surface transportation

26 facility;
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36

•S 1122 IS

1 ‘‘(iii) a publicly-owned bicycle or pe2 destrian pathway or trail; or

3 ‘‘(iv) a traffic calming measure;

4 ‘‘(D) to eliminate hazards relating to rail5 way-highway crossings; or

6 ‘‘(E) to increase transportation safety by

7 any other means, such as—

8 ‘‘(i) building wider shoulders;

9 ‘‘(ii) providing additional signage; or

10 ‘‘(iii) carrying out any other appro11 priate activity, as determined by the Sec12 retary.

13 ‘‘(c) FEDERAL SHARE.—The Federal share of the

14 cost of carrying out the program under this section shall

15 be 100 percent.

16 ‘‘(d) FUNDING.—Notwithstanding any other provi17 sion of law, there are authorized to be appropriated from

18 the Highway Trust Fund (other than the Mass Transit

19 Account) to carry out this section $50,000,000 for each

20 of fiscal years 2004 through 2009.’’.

21 (b) CONFORMING AMENDMENT.—The analysis for

22 chapter 4 of title 23, United States Code, is amended by

23 inserting after the item relating to section 411 the follow24 ing:

‘‘412. Tribal transportation safety program.’’.
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37

•S 1122 IS

1 SEC. 203. INDIAN RESERVATION RURAL TRANSIT PRO2 GRAM.

3 Section 5311 of title 49, United States Code, is

4 amended by adding at the end the following:

5 ‘‘(k) INDIAN RESERVATION RURAL TRANSIT PRO6 GRAM.—

7 ‘‘(1) DEFINITION OF INDIAN TRIBE.—In this

8 subsection, the term ‘Indian tribe’ has the meaning

9 given the term in section 4 of the Indian Self-Deter10 mination and Education Assistance Act (25 U.S.C.

11 450b).

12 ‘‘(2) PROGRAM.—

13 ‘‘(A) IN GENERAL.—The Secretary of

14 Transportation shall establish and carry out a

15 program to provide competitive grants to Indian

16 tribes to establish rural transit programs on

17 reservations or other land under the jurisdiction

18 of the Indian tribes.

19 ‘‘(B) AMOUNT OF GRANTS.—The amount

20 of a grant provided to an Indian tribe under

21 subparagraph (A) shall be based on the need of

22 the Indian tribe, as determined by the Sec23 retary of Transportation.

24 ‘‘(3) FUNDING.—Notwithstanding any other

25 provision of law, for each fiscal year, of the amount

26 made available to carry out this section under sec-
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38

•S 1122 IS

1 tion 5338 for the fiscal year, the Secretary of Trans2 portation shall use $20,000,000 to carry out this

3 subsection.’’.

Æ
71

1

II

108TH CONGRESS

1ST SESSION S. 1165

To amend the Transportation Equity Act for the 21st Century to provide

from the Highway Trust Fund additional funding for Indian reservation

roads, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 2, 2003

Mr. DOMENICI (for himself, Mr. INOUYE, Mr. CAMPBELL, and Mr. BINGAMAN) introduced the following bill; which was read twice and referred to

the Committee on Indian Affairs

A BILL

To amend the Transportation Equity Act for the 21st Century to provide from the Highway Trust Fund additional

funding for Indian reservation roads, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘American Indian Res5 ervation Transportation Improvement Program Act’’.

6 SEC. 2. INDIAN RESERVATION ROADS.

7 (a) AUTHORIZATION OF APPROPRIATIONS.—Section

8 1101(a)(8)(A) of the Transportation Equity Act for the
72

2

•S 1165 IS

1 21st Century (112 Stat. 112) is amended by striking ‘‘of

2 such title’’ and all that follows and inserting ‘‘of that

3 title—

4 ‘‘(i) $225,000,000 for fiscal year

5 1998;

6 ‘‘(ii) $275,000,000 for each of fiscal

7 years 1999 through 2003;

8 ‘‘(iii) $330,000,000 for fiscal year

9 2004;

10 ‘‘(iv) $360,000,000 for fiscal year

11 2005;

12 ‘‘(v) $390,000,000 for fiscal year

13 2006;

14 ‘‘(vi) $420,000,000 for fiscal year

15 2007;

16 ‘‘(vii) $450,000,000 for fiscal year

17 2008; and

18 ‘‘(viii) $480,000,000 for fiscal year

19 2009.’’.

20 (b) ADDITIONAL AUTHORIZATION OF CONTRACT AU21 THORITY FOR STATES WITH INDIAN RESERVATIONS.—

22 Section 1214(d)(5)(A) of the Transportation Equity Act

23 for the 21st Century (23 U.S.C. 202 note; 112 Stat. 206)

24 is amended by inserting before the period at the end the

25 following: ‘‘, $3,000,000 for each of fiscal years 2004 and
73

3

•S 1165 IS

1 2005, $4,000,000 for each of fiscal years 2006 and 2007,

2 and $5,000,000 for each of fiscal years 2008 and 2009’’.

3 (c) INDIAN RESERVATION ROAD BRIDGES.—Section

4 202(d)(4)(B) of title 23, United States Code, is

5 amended—

6 (1) by striking ‘‘(B) RESERVATION.—Of the

7 amounts’’ and all that follows through ‘‘to replace,’’

8 and inserting the following:

9 ‘‘(B) FUNDING.—

10 ‘‘(i) RESERVATION OF FUNDS.—Not11 withstanding any other provision of law,

12 there is authorized to be appropriated from

13 the Highway Trust Fund $15,000,000 for

14 each of fiscal years 2004 through 2009 to

15 carry out planning, design, engineering,

16 preconstruction, construction, and inspec17 tion of projects to replace,’’; and

18 (2) by adding at the end the following:

19 ‘‘(ii) AVAILABILITY.—Funds made

20 available to carry out this subparagraph—

21 ‘‘(I) shall be available for obliga22 tion in the same manner as if the

23 funds were apportioned under chapter

24 1; and
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4

•S 1165 IS

1 ‘‘(II) shall not be used to pay

2 any administrative costs.’’.

3 SEC. 3. INDIAN RESERVATION RURAL TRANSIT PROGRAM.

4 Section 5311 of title 49, United States Code, is

5 amended by adding at the end the following:

6 ‘‘(k) INDIAN RESERVATION RURAL TRANSIT PRO7 GRAM.—

8 ‘‘(1) DEFINITIONS.—In this subsection:

9 ‘‘(A) INDIAN TRIBE.—The term ‘Indian

10 tribe’ has the meaning given the term in section

11 4 of the Indian Self-Determination and Edu12 cation Assistance Act (25 U.S.C. 450b).

13 ‘‘(B) RESERVATION.—The term ‘reserva14 tion’ means—

15 ‘‘(i) an Indian reservation in existence

16 as of the date of enactment of this sub17 section;

18 ‘‘(ii) a public domain Indian allot19 ment; and

20 ‘‘(iii) an Indian reservation in the

21 State of Oklahoma that existed at any time

22 before, but is no longer in existence as of,

23 the date of enactment of this subsection.

24 ‘‘(C) SECRETARY.—The term ‘Secretary’

25 means the Secretary of Transportation, acting
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5

•S 1165 IS

1 through the Administrator of the Federal High2 way Administration.

3 ‘‘(2) PROGRAM.—The Secretary shall establish

4 and carry out a program to provide competitive

5 grants to Indian tribes to establish rural transit pro6 grams on reservations or other land under the juris7 diction of the Indian tribes.

8 ‘‘(3) COOPERATION.—The Secretary shall—

9 ‘‘(A) establish and maintain intra-agency

10 cooperation between the Federal Highway Ad11 ministration and the Federal Transit Adminis12 tration in—

13 ‘‘(i) administering tribal transit pro14 grams funded by the Federal Highway Ad15 ministration; and

16 ‘‘(ii) exploring options for the transfer

17 of funds from the Federal Highway Ad18 ministration to the Federal Transit Admin19 istration for the direct funding of tribal

20 transit programs; and

21 ‘‘(B) establish and maintain working rela22 tionships with representatives of regional tribal

23 technical assistance programs to ensure proper

24 administration of ongoing and future tribal
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6

•S 1165 IS

1 transit programs carried out using Federal

2 funds.

3 ‘‘(4) FUNDING.—Notwithstanding any other

4 provision of law, for each fiscal year, of the amount

5 made available to carry out this section under sec6 tion 5338 for the fiscal year, the Secretary shall use

7 $20,000,000 to carry out this subsection.’’.

Æ
77

The CHAIRMAN. With that, Senator Johnson, did you have any

opening comments before we start?

Senator JOHNSON. Yes; just briefly, Mr. Chairman.

Thank you for holding this important hearing today. I appreciate

your leadership on this. I have a full statement I would like to submit for the record.

The CHAIRMAN. Without objection, it will be included in the

record.

STATEMENT OF HON. TIM JOHNSON, U.S. SENATOR FROM

SOUTH DAKOTA

Senator JOHNSON. I want to thank you as well as Senator Bingaman for work in this important area. I also want to express appreciation to the NCAI and my own Standing Rock Sioux Tribe for

their leadership on tribal transportation issues. The tribes, in conjunction with the NCAI put a lot of time and effort into developing

ideas that can be incorporated into legislation. It is important that

these ideas were developed by the very people who have to implement these programs to deal with transportation challenges every

day.

My bill, S. 1122, is the result of the work of the tribes in the

NCAI. It is a comprehensive effort. I know that you, Mr. Chairman,

and Senator Bingaman, have put a great deal of effort into transportation bills. This has been designed to be a comprehensive and

ambitious effort. I think it is important that we get all the issues

out on the table.

Just very quickly, S. 1122, in addition to obviously increasing the

amount of funding for the IRR funding, beefs up the Tribal Transportation Safety Program, providing more funds for purposes such

as widening shoulders, and more guardrails.

Second, it assures that tribes can apply for scenic byways status

through the Federal system.

Third, it assures that tribes can derive direct funding from the

Federal Government rather than having the programs be implemented through the States.

Fourth, it takes a hard look at the maintenance issue. It makes

no sense to me that we should put significant expenditures into the

building of roads if we are not going to provide enough funding to

keep those roads properly maintained.

Fifth, it explores the idea of having a high-ranking person at

DOT who can assist the tribes in their navigation through the system.

Over the past 2 weeks I have spent a great deal of time traveling

around South Dakota, including travels throughout our Indian reservations, including the Pine Ridge Reservation. Frankly, the conditions of some of these roads is horrible. It is a public safety menace. It is a detriment to economic development. It is simply its own

fare to tribal people. The Federal Government has fallen down on

its treaty and trust obligations. It has enormous consequences in

Indian country.

Mr. Chairman, I thank you for this hearing. I look forward to the

testimony. I hope that as we go on through this year that we can

merge a lot of these ideas together in a way that will be construc-
78

tive and which will significantly enhance the quality of transportation and the safety of transportation in Indian country.

The CHAIRMAN. Thank you. I agree with you. I think there are

important provisions in each of the four bills. Hopefully we will be

able to merge those and come out with a composite that is in the

best interest of Indian people.

Senator Thomas.

STATEMENT OF CRAIG THOMAS, U.S. SENATOR FROM

WYOMING

Senator THOMAS. Thank you, Mr. Chairman.

I, too, appreciate your having this hearing. Certainly it is very

important. Indian country is part of the concerns that we have

about highways. We need to have more transportation support

there.

I have an unique involvement here in that I am on the Finance

Committee that has jurisdiction over the taxes paid. I am also on

the Committee on Environment and Public Works, which is reauthorizing TEA–21. I understand the importance of that investment.

I am interested in hearing about Senator Bingaman’s bill.

I do want to caution my fellow members that we need to remember that TEA–21 includes a number of very important programs.

We must be careful that we are not disproportionate of one over

another. We have significant increases in the Reservation Road

Program. Where is that funding coming from? Are we going to increase taxes? Are we going to reduce State highway funding? If we

double that, we are going to have to find some other additional

sources.

I did a little checking. I think certainly it is important that we

do this. Reservation roads have some Indian Reservation Road Program money in there as well as the Department of Transportation,

the county road funding, and the State gas tax. So we need to look

at the balance of how we do this. It is going to be a challenge.

There is a great deal of discussion about the donors and the recipients in the gas tax proposition. There are some opportunities to

raise the gas tax. Most people are not in favor of that.

I guess what we are looking for is a fair distribution of these dollars that are available. I think this is an excellent hearing. I am

glad you are having it. Thank you.

The CHAIRMAN. Thank you.

Senator Domenici, did you have any comments before we start?

Senator DOMENICI. Mr. Chairman, I was here either as a member or as a witness, whichever the Chair prefers, with reference to

the highway funding bill, which I have introduced, along with four

or five other Senators. Thank you.

The CHAIRMAN. With that, we will go ahead and start.

Senator Bingaman, welcome to the Committee.

Senator Domenici, do you also want to testify on S. 1165?

Senator DOMENICI. No; I have a separate bill.

The CHAIRMAN. Okay. We will start with Senator Bingaman.
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STATEMENT OF HON. JEFF BINGAMAN, U.S. SENATOR FROM

NEW MEXICO

Senator BINGAMAN. Mr. Chairman, let me join with all the other

members in thanking you for holding the hearing on this important

issue.

As you pointed out, there is a bill that you have introduced, S.

281. Senator Domenici’s bill is S. 1165 that he has introduced. Senators Johnson and Daschle have introduced S. 1122. I have introduced S. 725. There are many bills before the committee for consideration. I think we are fortunate today that President Joe Shirley

of the Navajo Nation is here as well as Mark Maryboy of the Tribal

Council, to testify. The Navajo Nation is the largest tribe with the

largest land area. Their voice in this issue is extremely important.

The point that Senator Thomas made about trying to decide how

to allocate the funds that are available for highways is exactly the

right issue for us to concentrate on. In that regard, there is one

statistic I want to cite to the Committee because I think it is important. The IRR program is currently authorized for $275 million

per year. This level represents less than 1 percent of the annual

Federal funding for road construction and rehabilitation. However,

the 50,000 miles in the IRR system represent about 5 percent of

the Nation’s 957,000 miles of Federal-aid highways. In my view, if

you are looking at a fair allocation, we are not providing that today

with the current authorized level. We need to increase that.

The main trust of the bill I have introduced, along with Senators

Feinstein and Leahy is to increase that authorization and to do so

in a way that will allow some of the real problems in this road construction to be dealt with. The BIA now estimates the backlog in

transportation needs at almost $10 billion, up from $6.8 billion just

4 years ago.

I was disappointed, as I am sure all of you were, that in the appropriations process this year we reduced the level of funding

available for the Indian Reservation Roads Program by $40 million,

from $280 million last year to about $240 million this year. Last

month there were 15 Senators, some of you included, who signed

a letter to the Appropriations Committee requesting a $350-million

appropriation for the program in this upcoming year, in 2004.

Funding for tribal transportation programs needs to be one of

our top priorities as we go into this reauthorization of TEA–21. The

bills that you have before you, I think, give you a very good basis

upon which to report out constructive legislation on this subject. As

I understand it, the tribes’ single highest priority transportation

issue is adequate funding.

The goal of the bill that I introduced is to improve basic transportation and promote the independence and self-determination of

Indian people. It is essential that Indian country be heard in this

reauthorizing process. I think this hearing is a major step in that

direction.

I appreciate the chance to speak briefly. I know you have many

witnesses here who will give you great insight into the needs and

the justification for some of these bills. Thank you again, Mr.

Chairman.

The CHAIRMAN. Thank you, Senator Bingaman.
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Senator Domenici, would you like to say a few words about S.

1165?

STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM

NEW MEXICO

Senator DOMENICI. Thank you, Mr. Chairman.

It has been 30 years or more since we started this set-aside out

of the Highway Trust Fund. Before that, it was just hit or miss,

and get what we could. I was very pleased to be part of the very

first bill with Senator Patrick Moynihan. Each time since we have

had an opportunity to introduce a bill. Each time we have substantially increased the amount, knowing full well, the increased needs.

The bill that I have introduced, which you have cosponsored

along with three other Senators, including Senator Bingaman, I believe is the minimum amount that we should proceed with. It increases the amount of the request to $330 million in the first year

and a $30-million increase each year thereafter.

In addition to that, however, it does two or three things that are

very much needed. First of all, it is important that the moneys that

are set aside for the building of bridges, that the Indian people be

allowed to use that money for planning and engineering purposes.

This bill gives them that authority. Otherwise, we find a hiatus;

the money is there for the building but the money is not there for

the planning and the design. In addition, we increase the contract

authority substantially. That, too, is very much needed and was requested specifically in negotiations with the Navajo Nation.

All in all, Mr. Chairman, I believe that S. 1165, the American Indian Reservation Transportation Improvement Act, is an excellent

bill. I have more detail regarding it in a statement and a summary.

It also creates for the first time an Indian reservation rural transit

program. It authorizes $20 million each year for that purpose. That

is the program as compared with the highways.

I think it is very important that we start by having every entity

in our country that manages and has roads to have a program surrounding it with professionals. The creation of that would be very

important.

Thank you for letting me spend just a few moments. Senator

Inouye has joined me in my bill, as have you. I thank him and you

for that. I urge not only that you move expeditiously to pick the

best bill, but that we collectively pursue with some degree of vigor

the committee of jurisdiction, and thereafter as suggested by Senator Bingaman, that we pursue the appropriators so that we do not

have our Indian people expecting a high level, to find that the appropriations process has reduced it substantially.

Since we have begun this rather significant set-aside process

under the name and nomenclature of an Indian set-aside for roads,

we have made significant gains, especially in Navajo lands where

it is quite obvious that the open spaces require roads. When you

finally see them built, it is quite obvious that they are links that

are heavily used for many purposes by the Navajo people to improve their daily lives. I thank you for that, Mr. Chairman. It is

a pleasure to be with the President of the Navajo Nation. I wish

him the best in his new job as leader of the Navajo people.

Thank you very much.
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The CHAIRMAN. Thank you. I look forward to working with you,

Senator Bingaman, and Senator Johnson in trying to make a composite bill that takes the best features of all of them. Hopefully we

can move it through as quickly as we can.

Thank you, Senator Bingaman.

We will now begin with our first panel. That will be Arthur

Hamilton, Associate Administrator for Federal Lands Highway,

Federal Highway Administration, Department of Transportation,

Washington, DC. We will also hear from Terry Virden, Director,

Bureau of Indian Affairs [BIA] Department of the Interior, Washington, DC.

Your complete written statements will be included in the record.

If you want to abbreviate your statement, you are welcome to do

so.

We will go ahead and start with Mr. Hamilton since I introduced

him first.

STATEMENT OF ARTHUR E. HAMILTON, ASSOCIATE ADMINISTRATOR FOR FEDERAL LANDS HIGHWAY, FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, WASHINGTON, DC

Mr. HAMILTON. Thank you, Mr. Chairman.

I am honored to testify on two legislative proposals for amending

the Indian Reservation Road Program now before this committee.

I would also like to highlight some provisions in the Administration’s bill, SAFETEA, that address tribal transportation needs.

Secretary Mineta has described transportation as the critical tool

for economic development and quality of life in a community. The

Administration is committed to providing safe and efficient transportation, for both residents and visitors, for access to and within

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

We want to work with this committee, with tribes, and with the

BIA to improve the Indian Reservation Road Program, and to increase tribal participation in the overall Federal aid program.

SAFETEA proposes a funding increase for the IRR program of almost 25 percent over the TEA–21 authorized level, nearly $2 billion

total over a 6-year period. SAFETEA would provide the IRR program with obligation authority equal to contract authority, as also

proposed by Senators Campbell and Bingaman. We believe that

with full OA, the funding increase proposed in SAFETEA can make

a substantial contribution toward meeting IRR program needs, and

is sustainable based on current estimates of Highway Trust Fund

revenues.

The Administration’s proposal has also built in new opportunities

for tribes to access Federal funding beyond the IRR program, including training and technical assistance. Tribes must be involved

at all stages of the transportation planning process.

Our proposed planning capability initiative should facilitate this

involvement. One of its objectives is to enhance tribal capacity to

conduct joint transportation planning. Increased tribal participation in metropolitan and statewide planning for the Federal-Aid

Program can lead to leveraging funds between tribes and States on

projects of mutual benefit.
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As you are aware, safety is a major problem on IRR roads the

fatality rate on Indian reservation roads is four times higher than

the national average. Secretary Mineta made improving safety and

reducing highway fatalities the focus of the Department’s reauthorization proposal, and overall funding for highway safety would

more than double under SAFETEA. Included would be a new dedicated safety funding category under the Federal Lands Highway

Program, funded at $40 million per year with 15 percent of the

funds allocated to BIA for Indian Reservation Roads. The funds

would be in addition to the 402 program funds which are also

available.

A proposed new core Federal-aid program, the Highway Safety

Improvement Program, can be especially important for increasing

the State focus on tribal transportation facilities. The new program

calls for State strategic goals that address all roadways in the

State and focus on the areas of greatest need. To take full advantage of the funding flexibilities in this new program, a State would

have to develop, through a collaborative process, a data-based strategic highway safety plan. In States with extensive Indian lands,

and high crash statistics on Indian Reservation Roads, tribes or

their representatives would be considered major stakeholders in developing the plan.

SAFETEA also proposes a major consolidation of highway safety

grant programs, including incentives for safety belt use and prevention of impaired driving. BIA would be eligible for grants. The

National Highway Traffic Safety Administration will continue

partnering with the Indian Health Service to develop culturally

specific programs to address impaired drivers and occupant protection, and to expand tribal participation in upcoming safety belt and

impaired driving initiatives.

In conclusion, while the Administration has concerns about certain aspects of these two bills, primarily related to our responsibility for stewardship of highway trust fund dollars, we support many

of the provisions and have similar proposals in SAFETEA.

I would like to work with this Committee, our tribal partners,

and the BIA on ways to better meet tribal transportation needs.

Mr. Chairman, again thank you for the opportunity to testify. I

would be happy to answer questions you or other members may

have. I would ask that my prepared statement be inserted in the

record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Hamilton appears in appendix.]

The CHAIRMAN. Thank you.

Mr. Virden.

STATEMENT OF TERRY VIRDEN, DIRECTOR, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC, ACCOMPANIED BY LEROY GISHI, CHIEF, DIVISION

OF TRANSPORTATION

Mr. VIRDEN. Mr. Chairman and members of the committee, I am

pleased to be with you today to provide the Department’s views on

S. 281 and S. 725.

Since enactment of TEA–21, the Federal investment in the BIAs’ Indian Reservation Roads [IRR] Program has exceeded $1.6 billion.
83

This has allowed us to improve over 900 miles of road and replace

or rehabilitate 76 bridges, during this period.

Despite these efforts, as has been mentioned previously, there is

still a great need for improving the transportation system in Indian

country. Improved transportation systems are vital to improving

public safety and increasing economic opportunities in Indian and

Alaska Native communities.

The Department supports the objectives of S. 281 to improve

roads on Indian reservations, but we do have some concerns regarding certain provisions. We would like to work with the committee in suggesting some clarifications in the bill.

We strongly support the provision eliminating the impact of the

obligation limitation. The Administration’s bill, SAFETEA, would

provide obligation authority equal to contract authority so that IRR

funds authorized can be obligated. Under TEA–21, the Indian Reservation Roads Program received a proportional reduction of obligation limitations for new funds using the same ratio as that applied

to States, resulting in a partial loss of authorized funds. Enactment

of this provision would make available as much as an 11-percent

increase in transportation-related services to Indian country.

We support the efforts to increase tribal involvement in the

transportation programs, but have some concerns with the language authorizing the demonstration project.

First, the legislative language does not explicitly state that the

Department of Transportation is eligible to contract with tribes

pursuant to the Indian Self-Determination and Education Assistance Act, Public Law 93–638. This is necessary for the successful

implementation of this provision.

Second, the demonstration project does not clarify which agency

would be the owner agency. Currently, the BIA is the facility owner

and responsible agency for approximately 25,000 miles of the

60,000 miles in the Indian Reservation Roads system. If the committee moves forward with these provisions, we ask that you clarify

which agency would be responsible for health and safety, and liability for any roads, bridges, or other related projects built under

this project.

As proposed, this bill would change the law to cap the BIA to no

more than 6 percent for administration and oversight of both nonproject-related and project-related management and oversight. This

would have the effect of drastically reducing resources available for

direct service tribes.

Under the current law, the BIA has the responsibility for oversight of the entire IRR program as well as certain specific responsibilities regarding individual road projects. The BIA has consistently used less than the 6 percent allowed to perform noncontractible, non-project-related functions, such as budget formulation, review of legislative proposals, and processing transportation

improvement programs [TIP’s] for the submission to Federal Highways Administration, preparing annual funding agreements, defending contract dispute actions, and providing technical assistance

to tribes. This also includes project-related administration oversight for health and safety for direct service Public Law 93–638

tribes that depend on the BIA for road projects.
84

Non-project-related work includes non-contractible activities such

as the final inspection of completed road projects, processing payments to contracting tribes, reviewing environmental, archeological, and historic preservation activities relating to contracted road

projects; processing rights-of-way acquisitions, preparation for road

construction, reviewing plans, specifications and estimates, and

conducting engineering and design activities where applicable. In fiscal year 1999, the BIA obligated $43 million for project-related functions for all tribes. Of this amount, 75 percent was obligated for direct-service tribes for engineering design, environmental compliance, historic preservation compliance, acquisition of

rights-of-way, and assuring compliance with construction standards

as required by title 23. Of the 887 Indian Reservation Roads

projects requiring engineering design, 660, or approximately 75

percent, were designed by the BIA on behalf of direct service tribes.

The proposed changes in the law in S. 281 would require the BIA

to perform a similar number of engineering and design projects for

direct service tribes with drastically reduced funding. The proposed

change is not necessary because the BIA uses the 6 percent program management funds in a manner that ensures that all of the

BIA’s inherent Federal functions are completed, and that direct

service tribes are serviced from their project funds.

Thus, it is only appropriate for the BIA to use project funds for

oversight of Self-Determination Tribal Indian Reservation Road

projects and to carryout BIA’s responsibilities. As the General Accounting Office noted in its letter to this committee dated August

14, 2000, the BIA uses the funds consistent with the law and, in

fact, the BIA, over the last 3 years, has responsibly limited the

amount of funding for non-project program management to an

amount less than the 6 percent.

Currently the BIA reviews and approves plans, specifications,

and estimates for Indian Reservation Roads projects to ensure that

construction of the projects will not jeopardize health and safety.

This is not uncommon in road construction for several reasons.

First, title 23 requires that approved plans and specifications are

necessary before any project authority may proceed to construction.

The facility owner has the responsibility to approve plans and specifications for the projects within its jurisdiction.

The concern of the BIA has been that approval authority for the

37,000 miles of roads and bridges that are not the responsibility of

the Secretary should be coordinated with those respective facility

owners—county, State, or other local governments.

In the last year the BIA has worked with tribes on individual

contracts and agreements to provide tribal approval of plans, specifications, and estimates [PS&ES] on BIA roads. The BIA believes

that this provision is unnecessary as changes within the soon-tobe-published final Indian Reservation Roads regulations will help

clarify the tribes’ roles, and provide tribes under Public Law 93–

638 contracts and agreements the ability to approve PS&Es.

We support tribal eligibility for seat belt safety and intoxicated

driver safety programs as proposed in the Administration’s bill.

SAFETEA calls for the consolidation of these programs under the

National Highway Traffic Safety Administration’s Section 402 program. The BIA will work with this committee and the Secretary of
85

Transportation on implementing any such provisions that support

the success of these safety-related measures.

S. 281 establishes the Native American Commercial Driving,

Training, and Technical Assistance Program for tribal colleges. The

intent of this program is to encourage economic opportunities for

tribal members.

In addition, this training program would be conducted by tribal

colleges and universities and provide them with value-added educational programs for their students. We support additional training programs for Native Americans.

We have some of the same concerns for the demonstration

projects in S. 725 as I mentioned in S. 281. S. 725 creates a tribalspecific transportation safety grant program that emphasizes intoxicated driver safety, the promotion of increased seat belt use,

and the elimination of hazardous locations. The new program established under S. 725 would supplement existing safety grant programs in the Indian Highway Safety Program under section. 402

of Title 23.

S. 725 establishes an Indian reservation rural transit program

designed to provide competitive grants to Indian tribes to establish

rural transit programs on reservations or other land under the jurisdiction of the tribes.

The Department supports the development of rural transit programs in Indian and Alaska Native communities. However, we feel

the provisions in SAFETEA better address tribal needs in the current economic environment.

With that, I thank you for allowing me to testify today on behalf

of the Department. I would ask that my prepared statement be inserted in the record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Virden appears in appendix.]

The CHAIRMAN. Thank you.

I have several questions. I am sure Senator Johnson has questions, too.

I was disappointed to note the Administration’s proposal,

SAFETEA, that the incentive grants in the areas of seat belts and

intoxicated drivers are being combined in the National Highway

Traffic Safety Administration.

Mr. Hamilton, why is the BIA is the only eligible grantee for this

funding and Indian tribes are not available for direct funding?

Mr. HAMILTON. I do not have that information with me today,

Senator. I would like to provide an answer to you for the record.

The CHAIRMAN. I wish you would. We give direct funding to the

States and to many other agencies within State governments. I do

not know why the tribes should not be eligible for direct funding.

If you would give us that information, I would appreciate it.

Mr. HAMILTON. Certainly.

[Material to be supplied follows:]

The current State highway safety grants process under the Transportation Equity

Act for the 21st Century (TEA–21) is complex and time-consuming, consisting of

eight programs with varying qualification and administrative requirements. Therefore, the Administration has proposed restructuring and consolidating the highway

safety grant programs. The new approach simplifies grant administration by first,

reducing the number of grant programs, and second, streamlining the process to administer and to qualify for grant funds. All TEA–21 highway safety grant resources,
86

including section 157 (‘‘Safety incentive grants for use of seat belts’’) and section 163

(‘‘Safety incentives to prevent operation of motor vehicles by intoxicated drivers’’)

grant programs would be consolidated within the National Highway Traffic Safety

Administration (NHTSA). States predominantly have used these flexible funds for

highway safety purposes. Moving these funds into the NHTSA account will streamline grant management.

Section 402(i) of Title 23, United States Code, designates the Secretary of the Interior as the coordinating entity for the purpose of application of the highway safety

program for Indian tribes. The Secretary of the Interior has delegated this authority

to the Bureau of Indian Affairs [BIA] to administer the federally funded highway

safety program on behalf of the tribes. Indian tribes are eligible to apply for grants

in the highway safety program through application to the BIA, just as local governmental entities participate through their State Highway Safety Offices. This process

has served the program well, as the BIA contracts with individual Indian tribes

meeting specific criteria. The BIA serves in the capacity of a govenor’s highway safety representative in managing, providing technical assistance, and monitoring the

section 402 highway safety program. Under the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2003 [SAFETEA], the BIA would administer

the consolidated highway safety grants as they have grants under TEA–21 and

other previous authorizations.

The CHAIRMAN. How does a tribal road-building company, or an

engineering firm, or a surveying firm, get into the procurement list

to be considered for road building contracts?

Mr. HAMILTON. Under the Federal Lands Highways Program, we

procure design services and construction services. We basically solicit through the bidding process, using the low bidding process. We

open the door for any company within the area that the project is

located.

The CHAIRMAN. One of the problems that I think we have had

with contracting and getting into the bidding process with triballyowned firms is a lot of times they do not know they are eligible,

or they do not know the exact process of how to get in. Do you have

a system in place to notify them, educate them, and help them?

Mr. HAMILTON. Yes; we do. I was not aware that there had been

some concerns. We do have a system in place where we can work

through the Tribal Transportation Assistance [TTAP] centers to

help provide that information to the tribes.

The CHAIRMAN. Your testimony mentions that the demonstration

project in S. 281 would duplicate DOT technical assistance programs. Mr. Virden also mentioned something about the demonstration project also.

Do you know how many Native Americans are trained through

the DOT program? Is any of the training located on tribal lands?

Mr. Virden, maybe you might know the answer to that.

Mr. VIRDEN. Yes; please bear with me for 1 minute. There is one

tribal college participating. That would be the United Tribes Technical College in Bismarck, ND. As far as the number of students

that are currently in the program, I do not know. We can provide

that at a later date.

The CHAIRMAN. What kind of training do they go through at

United Tribes; do you know?

Mr. VIRDEN. It is training for certification for commercial driving.

The CHAIRMAN. The American Trucking Association tells me that

normally they are short about 300,000 drivers every year. I would

think that that program needs to be expanded considerably. In fact,

I had a bill in to do something like that, giving the Department of

Labor grants to schools that would start driver training programs.

It did not go anywhere last year, but it is now part of S. 281. You
87

might want to look at the bill. I think it is a bill that could be of

great help.

Mr. Hamilton, does the Administration’s proposal have any programs in which tribes have direct access to Federal funding, like

the States do?

Mr. HAMILTON. No; we do not, Senator. We do not have any programs right now that have direct funding to the tribes.

The CHAIRMAN. Why is that?

Mr. HAMILTON. Normally, title 23 requires that the funds either

be sent through the State Department of Transportation or, within

the Federal Highway Program, the funds are allocated to the BIA.

The CHAIRMAN. Mr. Virden, as I understand it, about 6 percent

of IRR funding is used for administrative expenses. In some areas

that is considered high. Also, as I understand it, 6 percent is set

statutorily. Could you explain why the administrative expenses are

over 6 percent?

Mr. VIRDEN. Historically, as I mentioned, in the last three years

we have stayed under that 6 percent.

The CHAIRMAN. Your information is different than mine.

Mr. VIRDEN. There are some legitimate costs for administration

which really should not be tied to projects. They are not related.

Examples of some of these expenditures are as follows: These figures are from last year, the Tribal Transportation Assistance Centers, $980,000; Council of Tribal Advisors for the Lewis and Clark

Bicentennial; inspection of the BIA bridges; regulatory negotiations

with tribes; and supporting the National Tourism Conference for

Native Americans.

The CHAIRMAN. All right.

In 1998 I had an amendment to TEA–21 that made it clear that

all funds—not some funds—are available to Indian tribes for contracting under the Indian Self-Determination Act. Do you know

how many contracts are in existence? Which tribes have those contracts for highway construction?

Mr. VIRDEN. I do not know how many exactly. I do have Mr.

Leroy Gishi, my Division Chief for the Division of Transportation

with me today. He may have that figure.

The CHAIRMAN. Please come up to the table, Mr. Gishi, and give

the committee those numbers, if you have them.

Mr. GISHI. Mr. Chairman, just to clarify, the amount of funds associated with the IRR programs in the past, consistently over the

last three to 4 years, has been about 45 to 47 percent for self-determination contracts or self-governance agreements. I say the

amount of funding, because the bulk of contracting or compacting

tribes does not represent 47 percent of those tribes. There are a

number of them that have a significant amount of program dollars

based on the formula that is initiated and that is based on the

need.

If you look at it from that standpoint, that represents anywhere

from about 50 to 70 tribes that are contracting work under the new

self-determination act.

The CHAIRMAN. Thank you.

I have one last question before I ask Senator Johnson for his

questions.
88

I understand the Bureau keeps a list of road consultants who are

pre-qualified and get most of the contracts to build the roads in Indian country. Of the list of pre-qualified people, are any of them

Indian-owned firms?

Mr. GISHI. Yes; as a matter of fact, the primary procedure in the

procurement and the contracting process that the BIA uses in the

Indian Reservation Roads Program is to, first of all, provide the

right of first-refusal to tribes to give them the opportunity to contract the work if, in fact, that is what they want to do. Some do

portions of it. Some just do the construction. Some do the design

or the historic preservation portions.

After that, we follow the Buy-Indian Act. We advertise and seek

competition among Indian contractors. If there are no Indian contractors available, then we advertise in the open market for all contractors.

The CHAIRMAN. Very good. Thank you for your testimony. I have

no further questions.

Senator Johnson, do you have any questions?

Senator JOHNSON. Just briefly. Thank you, Mr. Chairman. Thank

you to the panel.

Much of my concern, frankly, is going to come down simply to the

overall level of funding and the allocations involved here. Clearly,

as I think Senator Bingaman very ably noted, the amount of funding available for roads in Indian country is far less than what the

miles suggest ought to be case. We need to address that.

I am particularly distressed of an actual decline in funding available for the IRR program this year. This is an utterly unacceptable

circumstance.

Let me ask Mr. Hamilton. One of the issues—and Chairman

Campbell has touched on this as well—that does not get a lot of

attention because it is so unique to Indian country, is the whole

question of the tribe’s preference of working directly with the Federal Government rather than to have to go to their respective

States for highway funds, whether it be maintenance, safety, scenic

byway, transit funding, and so on.

The tribes, as they remind me on a regular basis—and rightfully

so—are sovereign entities. The tribes are not administrative

subunits of States at all. My legislation does address that issue. I

would hope that you would work with us to see that we can perfect

a better mechanism to implement that. This is a matter of great

practical and philosophical import to our sovereign tribes. It is long

overdue that we finally correct this and quit treating them as

though they were a county, or some sort of administrative subset.

They are not. We need to work with you to see if we can correct

that.

Mr. HAMILTON. We would be happy to work with you, Senator.

Right now, title 23 and other program legislation requires that

funds this be sent through the State Highway Departments. We

work jointly with BIA to administer the Federal Lands program.

But otherwise we have no choice, because of title 23, other than to

work directly with State DOTs.

Senator JOHNSON. We need to address that. I am hopeful that as

we put together legislation, we can do that. The circumstances of

the tribes are widely varying in their size and their ability to work
89

with the Federal Government and with the States. But the relationships between the tribes and the States is highly variable as

well. In some places it is fairly good, and in other places, it is not.

In all circumstances, they are not entities of the State. I hope

working with you and with the Chairman, we can finally begin to

deal with the tribes on their proper status.

Mr. HAMILTON. One of the things that we are proud of is our

transportation planning capacity program under SAFETEA, which

we think will provide an opportunity for the tribes to be able to

work a lot closer with State DOTs in the planning process, which

is really needed. They need to be at the table during the Statewide

planning, or the metropolitan planning process, which would open

up more avenues of funding for the tribes.

Senator JOHNSON. Cooperation and coordination is one thing. We

are all for that. But tribes should not have to go hat-in-hand to the

State as though it were up to the State to choose unilaterally about

these projects. That is the only thing I wanted to share with you.

Mr. Chairman, I have a conflicting obligation, as is so often the

case. I am going to have to excuse myself. This is a very valuable

hearing. I thank you for chairing this. I look forward to working

very closely with you and our colleagues to make some very serious

progress on Indian road circumstances in the Nation this year.

The CHAIRMAN. We might be able to work with the EPW through

Senators Inhofe and Jeffords to change Title 23. I think there is

some confusion. Often people think that the Bureau is the tribes.

It is not. If we really believe in self-determination, we have to give

more access to the tribes to deal directly with the Federal Government.

Senator JOHNSON. While a lot of the IRR money comes through

the BIA, there is a lot of money that just flat out goes to the various States.

The CHAIRMAN. It does not filter down.

Senator JOHNSON. I think that we need to readdress that.

The CHAIRMAN. Thank you.

We thank this panel very much for being here.

Our next panel will be Joe Shirley, president, of the Navajo Nation; Chad Smith, chairman, the Cherokee Nation; Richard

Milonovich, chairman, Agua Caliente Band of Cahuilla; James

Garrigan, transportation planner, Red Lake Band of Chippewa Indians of Minnesota; and Loretta Bullard, executive director,

Kawerak.

While you are being seated, we are going to take a 5-minute

break.

[Recess taken.]

The CHAIRMAN. The committee will come to order.

As with the last panel, if you would like to submit your complete

written testimony, it will be included in the record. You are welcome to abbreviate your testimony.

We will start in the order that I mentioned your name. We will

start with Joe Shirley, Jr., president of the Navajo Nation.
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STATEMENT OF JOE SHIRLEY, JR., PRESIDENT, THE NAVAJO

NATION, WINDOW ROCK, AZ, ACCOMPANIED BY MARK

MARYBOY, CHAIRMAN, NAVAJO TRANSPORTATION AND

COMMUNITY DEVELOPMENT COMMITTEE, THE NAVAJO NATION COUNCIL

Mr. SHIRLEY. Thank you, Chairman Campbell. My name is Joe

Shirley, Jr. I am president of the Navajo Nation.

Chairman Campbell, Vice Chairman Inouye, and members of the

committee, it is my honor to appear before you on behalf of the

Navajo people to address your proposals to amend the Indian Reservation Roads Program. I am joined by Mr. Maryboy, chairman of

the Transportation and Community Development Committee of the

Navajo Nation Council whose recommendations are reflected in legislation before you.

The issue before you today is how to build travel transportation

systems that will enable Indian people to go from Third World conditions, which tend to squash human potential to First World conditions, which tend to make it easier for the best within us to become a reality.

Transportation is essential to the basic quality of life and economic development of tribal communities. There are approximately

9,826 miles of public roads on the Navajo Nation which itself is

about the size of West Virginia. While West Virginia has 18,000

miles of paved roads, the Navajo Nation has only 2,000 miles of

paved roads; 78 percent of our roads are dirt. On a regular basis,

businesses explore the possibility of locating to the Navajo Nation,

but they do not once they realize the lack of paved roads. Bad

roads in Indian country not only mean the difference between poverty and prosperity, but they also mean the difference between life

and death.

Health clinics on the Navajo Nation are few and far between.

Tribal members, including the elderly, the children, and the disabled, often must travel hundreds of miles to receive specialized

care. Dirt roads, deteriorating paved roads, and treacherous

bridges, make their long journeys that much more difficult. It is no

coincidence that automobile accidents are the number one cause of

death among young American Indians. The annual fatality rate on

Indian reservation roads is more than four times the national average.

Our children’s education is also threatened by dirt roads that become so bad that they are impassable to school buses. As you know,

the BIA school buses alone travel over 15 million miles a year to

transport Indian children on what is often a one-lane dirt road,

lacking any basic safety features such as shoulders or guard rails.

I want to read two letters from two Navajo children who attend

the Pine Springs Bureau of Indian Affairs Elementary School within the Navajo Nation in Pine Springs, AZ.

Their words say more than I ever could about how the 12-mile

dirt road, which is the only way to access their school, impacts

their education.

Dear Roads Task Committee. Hi. My name is Jonathan. I go to school at Pine

Springs School. I want the road graded because some people drive slow because the

road is too bumpy and rough because there are too much rocks sticking out of the

ground. Please pave the road north of Pine Spring Road. Please, because it is
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bumpy, too. Please do not let the kids get hurt on the bus. The kids get hurt because the kids get cut on the bus. That is really dangerous for the kids. The milk

and grocery truck comes up here every week. They do not like the rough road, too.

Let our safety come first. Kids come first above all. We have a real nice school and

we enjoy it very much. Jonathan Smith.

The second letter, Mr. Chairman, reads as follows:

Dear Roads Task Committee. Hello. My name is Marcario Betoney. I go to school

at Pine Springs School. I hate the road up here because we get flat tires and the

buses get broken down. Then the buses do not come right on time when school

starts. When people drive really fast the rocks jump up and hit the windshield.

Then the windshield cracks. Then they have to take the car and truck to the shop

to get it fixed. People get into car crashes when they are going too fast on the bumps

that are on the road. Sometimes we have name games. Sometimes we have home

games over here. Parents do not like to come to the games because of this road.

My family do not like the road because of the rocks and bumps. Our trucks and cars

are getting rocks into the tires. Then it gets flat. Can you please fix the road for

us. Please? Thank you. Marcario Betoney.

Indian reservation roads are not an Indian problem. The Indian

Reservation Roads Program impacts all people—tribal and nontribal alike. Tribal lands provide vitally needed access within and

between States, and support a multitude of economic interests, including tourism, agriculture, energy production, manufacturing,

mineral extraction, and timber harvesting.

Indian reservation roads represent 2.65 percent of all Federal

lands highways, yet receive less than 1 percent of the Federal surface transportation budget. In fact, last year tribes received even

less than the year before. In fiscal year 2003, the Indian Reservation Roads Program was slashed $40 million below the 2002 level,

while States received an increase.

I respectfully urge this committee to ensure that equity actually

means something in the reauthorization of the Transportation Equity Act of the 21st century.

Thank you. I would ask that my prepared statement be inserted

in the record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statements of Mr. Shirley and Mr. Maryboy appear in

appendix.]

Mr. SHIRLEY. Attached to my written testimony, Chairman

Campbell and members of the committee, are some photos for your

perusal. It is very typical of what roads are like on Navajo land.

The CHAIRMAN. Thank you.

Mr. SHIRLEY. Chairman Campbell, can you give my council delegate, Mark Maryboy, some time? Maybe you can just make his

written testimony part of the record.

The CHAIRMAN. His testimony is included with yours and has

been made a part of the record.

As you know, I live down in the Four Corners area near you. I

travel on some of those roads myself when I go see friends and

cross the Navajo Reservation. I know what most people on the committee do not know is that during the winter time that some of

your roads are impassable. The difficulty is that people who have

to leave their cars on a paved road miles and miles away from

where they live. In fact, sometimes the winters get so bad we have

had to provide air drops of food for children because people cannot

get into the community to be able to get food. I am very aware of

that.
92

I was looking at the pictures you provided for the committee.

This one looks like the bottom of a bridge with rotting planking.

Are these structures old oil drilling pipes that are holding that

bridge up?

Mr. SHIRLEY. I think those are metal pipes. They are all rusted

and corroded. It is very dangerous.

The CHAIRMAN. It also looks to be.

We also have written testimony by Mr. Maryboy.

Mark, years ago were you a county commissioner in Utah?

Mr. MARYBOY. Yes.

The CHAIRMAN. That was you. I met you years ago. I just have

not seen you for a long time. I am glad you are still active in public

policy with the tribe. You did a fine job as a county commissioner,

too, by the way.

Mr. MARYBOY. Thank you.

I have served as a county commissioner for the last 16 years. I

retired last year. I remember you and I were riding broncos in Dorado, CO.

The CHAIRMAN. That is right. We were both chasing the horses.

That has been a long time ago. I am glad to see you here. I am

glad you have been active all these years. [Laughter.]

We will now go to Chairman Smith.

STATEMENT OF HON. CHADWICK SMITH, CHAIRMAN, THE

CHEROKEE NATION, TAHLEQUAH, OK, ACCOMPANIED BY

JACKIE BOB MARTIN, CHAIRMAN, RESOURCES COMMITTEE,

CHEROKEE NATION TRIBAL COUNCIL, AND HARLEY BUZZARD, DIRECTOR OF ROADS, CHEROKEE NATION TRIBAL

COUNCIL

Mr. SMITH. Good morning, Mr. Chairman, and members of the

committee. My name is Chad Smith. I am the principal chief of the

Cherokee Nation. Joining me are Jackie Bob Martin, chairman of

the Resources Committee of the Cherokee Nation Tribal Council;

and Harley Buzzard, director of our Roads Program.

I testify today in strong support of the tribally-developed transportation program improvements reflected in the bill before this

committee, not only for the Cherokee Nation but also for the

500,000 tribal citizens of the Cherokee, Seminole Creek, Choctaw,

and Chickasaw Nations.

I am pleased to see the common sense ideas, innovative proposals, and the increased funding in your bill, Mr. Chairman, as well

as those in Senator Bingaman’s bill, and in Senator Johnson’s bill.

My brief remarks will focus on four issues I believe are critical

to any tribal transportation reauthorization bill: Economic development, safety, funding equity, and program efficiency. The Cherokee

Nation has more than 237,000 tribal citizens, nearly one-half of

whom live within our 7,0900 square mile jurisdictional area, which

is basically Northeastern Oklahoma.

According to the 2000 Census, our jurisdictional area is home to

462,000 American citizens who benefit from the jobs, infrastructure

improvements, and business opportunities that the Cherokee Nation brings to Northeastern Oklahoma. It is very clear that roads

benefit Indians and non-Indians alike.
93

The 2000 Census Report indicates that 13 percent of the families

and 16 percent of the individuals live below the poverty line in our

area. This reauthorization provides Congress an unique opportunity to jump-start the economy in Eastern Oklahoma. I have

seen the economic health, safety, and societal benefits that come

when our transportation systems are improved and our infrastructures properly maintained.

As you know, every dollar invested in transportation infrastructure yields a sixfold increase in the Nation’s economy, generating

many new and desperately needed jobs. This investment is especially important for the tribes. By making a modest financial investment and other common sense improvements to Federal transportation laws, Congress can help tribes turn areas that are too

often pockets of poverty into engines of economic growth.

We applaud the Administration’s reauthorization proposal which

focuses on transportation safety and security. We also support your

proposal, Mr. Chairman, and Senator Bingaman’s, and Senator

Johnson’s, to provide tribes with direct access to Federal transportation safety funds. The statistics on traffic injuries and fatalities

on tribal roadways are truly appalling.

This committee’s own report in 2000 concluded that the unsafe

conditions on many IRR roads and bridges have led to an annual

fatality rate on the IRR system of more than four times that of the

national average. While statistics are important to make a point,

they cannot adequately capture the grief of a Cherokee citizen who

lost a loved one in a preventable traffic accident a few years ago.

Gerald Blackbear, a full blood Cherokee, lost his life in a car crash

on the Fairview/Eucha Bridge in the northern part of the Cherokee

Nation.

This bridge is situated on a roadway which provides access to

health clinics, shopping, and employment, and is also a bus route

for the local school. I have a photograph of that actual bridge. I

would ask permission to pass this picture to the committee.

The CHAIRMAN. Please do.

Mr. SMITH. Here is the original one-lane bridge with no guard

rails and no safety to it. He drove off in the rain. It was several

hours before his body was recovered. You see to the right of that

photograph a bridge that has now been completed under the IRR

program. This shows you the success and the critical need for this

endeavor.

With the committee’s permission, I will circulate these.

The bridge was a small one-lane roadway that had dangerous

turns and no guard rails. While the Nation has received funding

since to replace the bridge, it was soon enough to prevent the unnecessary death of Gerald Blackbear. We can and must do better.

Mr. Chairman, we all realize the budget restraints facing Congress, but the Indian Reservation Roads Program has been underfunded for far too long. Tribes need and deserve funding equity.

Two statistics prove my point. I believe the committee is well

aware of these.

Although the IRR system comprises 2.63 percent of the Federal

aid system, it receives less than 1 percent of the surface highway

funding out of the National Highway Trust Fund. According to the
94

BIA and transportation experts, the current IRR construction backlog is between $11 and $25 billion.

The Cherokee Nation faces similar challenges in budgeting

scarce resources but we have determined roads and infrastructure

to be a high priority when allocating substantial tribal funds to

supplement our IRR allocation.

Of course, Congress should increase the funding for IRR and reinstate the program’s exemption from the obligation limitation deduction. For States, the obligation limitation is a temporary delay

in full funding. But for tribes, obligation limitation is a permanent

loss which removes $35 million annually. That is about 13 percent

of the IRR Federal budget loss.

Restoring the exemption from the obligation limitation is a nocost way of increasing annual funding to the IRR program. Unlike

the States who ultimately get the obligation limitation back, the

tribes obligation limitation is basically forfeited. In the alternative,

we would request the obligation limitation funds to be directed

back to the tribes and not to the State.

In terms of program efficiency, when the Federal aid highway

system was developed in the mid-1950’s, Federal Indian policy supported termination of the trust responsibility and elimination of

Federal recognition for tribal governments. During that period,

Federal transportation laws enabled money, intended for the tribal

transportation systems, to be funneled to the State and BIA.

While the termination era has long since passed, the funding

mechanism for tribal transportation systems remains the same.

The result is an inefficient program that cost Federal, State, and

tribal officials countless hours and many millions of dollars in

needless transaction costs. Moreover, this funding structure does

not support tribal self-determination or self-governance.

I would have disagree with my colleague, Mr. Virden, about the

6 percent BIA Administration set-aside, we believe it is unnecessary for self-governance tribes. For example, when we design a

road, we have a professional engineer design that road. He stamps

the plans. Those plans are submitted to a second professional engineer under our guidelines who approves those plans. Then, under

the current system, those plans are again submitted to the BIA

who have their own professional engineer to stamp those plans a

third time.

Under the demonstration program with the Red Lake Band of

Chippewa Indians have demonstrated that that is unnecessary duplicity of bureaucracy. The professional engineers’ reputation in

that disciple provides insurance of quality work.

As one of the first tribes in the country to bring self-governance

principles to the IRR program, we have seen first hand the positive

benefits that can be brought to our people in our communities. We

recognize that funding is limited, and request that we be given the

tools to maximize those limited resources.

Simply, elimination of the exemption for the tribes’ obligation

limitation and elimination of the BIA Administration’s 6 percent

cost, would mean 20 percent more funding for actual construction

of roads. We are hopeful that you and members of this committee

will work closely with Senator Inhofe to develop a tribal transpor-
95

tation reauthorization bill that has the broadest support of all possible tribal governments.

Finally, Mr. Chairman, when you introduced your bill in 2000,

you stated for Indian communities an efficient Federal roads financing construction system holds the key to healthier economies

and higher standards of living for their members. I could not agree

with you more. I urge the committee to adopt your proposals as

well as those of Senator Johnson and Senator Bingaman.

Thank you, Mr. Chairman, and members of the committee, for

the opportunity to testify in strong support of this important legislation. I would be happy to answer any of your questions. I would

ask that my prepared statement be inserted in the record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Smith appears in appendix.]

The CHAIRMAN. Thank you.

We will now move to Chairman Milonovich.

Before you start, Richard, I would like to tell you that Senator

Allen and I really enjoyed our visit with you last week in your

home lands. He still talks about the terrific interaction you have

with the local community and county government. He has told me

several times he wants to come back and go for a horseback ride

up in that beautiful canyon you showed up with that tribal park.

You can look forward to both of us coming back when we have the

time.

You can go ahead and proceed.

STATEMENT OF RICHARD MILONOVICH, CHAIRMAN, AGUA

CALIENTE BAND OF CAHUILLA, PALM SPRINGS, CA

Mr. MILONOVICH. Thank you, sir. I appreciate that.

Mr. Chairman, thank you for the opportunity to share our views

with you that highlight the solutions to the transportation challenges that are faced by Indian tribes and the members of the

Agua Caliente Band Indians on a reservation headed in Palm

Springs, CA.

Our transportation issues and challenges, however, are largely a

result of our existing checkerboard land ownership patterns in the

growth of these communities around our reservation. Today my testimony will address three subjects:

First, our innovative proposal for tribal road bonding; second, the

current Indian Reservation Road Program, including proposed

modifications of that program; and, third, specific road projects

that we are working on independently and within the city of Palm

Springs.

First, we have put forward an innovative financing proposal for

tribal roads. our tribal roads bonding proposal supplements the

current IRR program. It draws on the growing financial sophistication and where-with-all of many tribes. Our proposal works like

this.

When a tribe or tribes cooperatively, wish to build a road to service their reservation, the design and plans for the road are developed. The road is included on the tribal transportation plan, or any

other existing transportation plan. The tribe takes that design and

plan to the Department of Transportation who check to see that all
96

is in order with the design, and that costs are in line. We can, but

are not required, to make a tribal contribution toward the project.

If we contribute, however, 25 percent of the project costs, then the

tribe’s project is eligible for one-half of the money available under

the bonding program.

When DOT approves the project, it issues a commitment to pay

the remaining costs of the project over a period of years. The tribe

takes the commitment and then issues a bond to cover the cost of

the project. From the proceeds of the bond it builds the project in

that year rather than waiting.

Then each year the tribe gets payment from the Department of

Transportation and, in turn, pays the bondholder. The money

comes from the Highway Trust Fund. Our idea is patterned after

the existing DOT program that allow States to use some of their

regularly flowing highway dollar revenues from their annual allotment to pay for road bonds. This style of financing for roads is how

all long-term assets should be financed, especially roads.

The second topic I will cover today is the existing Reservation

Roads Program. It is a good program, and I am glad that the BIA,

after 7 years, finally has a package of regulations for the program.

I am also glad that there are some modifications, including increased funding, that have been proposed legislatively. We support

these modifications.

Under this program, our tribe has received approximately

$90,000 for road planning activities during the last 3 years. The

current funding level does not address the needs of small tribes,

particularly those in California. That is why we are proposing an

innovative finance bonding program. That is why we support the

modifications to the current IRR program.

I have the following recommendations regarding the existing IRR

program. At the very least, the BIA IRR formula should reflect the

$100,000 base funding per tribe right off the top takedown. The

base funding is needed to meet the minimum planning for intermodal transportation.

California tribes should receive a minimum of 9.2 percent of the

BIA IRR funds, which is the minimum guaranteed rate that California receives from the Federal Highway Trust Fund. My point is

that we have received plenty of money for the current program, but

we have not received road money. We have needed to self-finance

important road projects.

My third topic is to discuss our current transportation priorities.

As one of the few tribes in the United States who inhabit a large

urban area, our transportation needs are somewhat different than

those of most tribes. Agua Caliente has developed a list of transportation requests that not only benefit tribal members, but also

our neighbors within the Coachella Valley.

We have three cities as well as the county of Riverside which are

located on or near our reservation. We are now seeking Federal

funds for three priority projects: First, road and bridge improvements to South Palm Canyon Drive and the Indian Canyons access

road; second, replacement of the Indian Canyon/Interstate 10 interchange; and, third, construction of the Mid-Valley Intermodal

Transportation Center.
97

South Palm Canyon Drive is the only road into the Indian Canyons Nature Preserve and Agua Caliente Cultural Museum site. It

also provides access to numerous residential developments, businesses, and the Agua Caliente Tribal Government Building. The tribe has requested $7.2 million in Federal funding to complete improvements on South Palm Canyon Drive. The funding will

complete realignment and pavement of existing roads, replacing inadequate bridge structure over the Arenas South Drainage Channel, and construct an intermodal transportation center providing

additional access to Indian Canyons Cultural site and the Agua

Caliente Museum.

Currently 90,000 vehicles per day travel I–10 through the Indian

Canyon Interchange, while some 19,000 vehicles per day travel this

section of Indian Canyon Drive. The Agua Caliente, in partnership

with the city of Palm Springs, has identified the Indian Avenue

interchange as a top priority for the highway bill reauthorization.

We have requested $15.3 million to replace the existing two-lane I– 10 Indian Canyon Drive interchange constructed in 1956 with a

six-lane interchange and accompanying access ramps and service

roads.

Enhancing existing roads and building new roads is only one

part of the long-term program solution to our traffic issues. We

must also improve access to mass transit. Currently, very few people arrive in the Coachella Valley by rail. The only passenger rail

service provided to the Palm Springs area is one daily, late-night

stop by Amoral.

The Agua Caliente and other governmental organizations in the

Coachella Valley have long desired a passenger rail service connection to Los Angeles. To bring passenger rail service to the

Coachella Valley, we must have the infrastructure in place to support the service.

Knowing that the highway bill reauthorization will emphasize enhancement of intermodal centers, we have requested $4.2 million

to construct the Mid–Valley intermodal Center. The funds will

allow for construction of a terminal building parking structure, a

park-and-ride facilities, 500-foot double track passenger platforms,

and pedestrian under-crossing for enhanced passenger safety and

convenience.

The Agua Caliente are serious about the opportunity for a Mid–

Valley intermodal station and have supported the Coachella Valley

Association of Governments, which includes nine cities, two tribes,

and the county, and have purchased 11 acres of land, at a substantial cost, where the rail station and park-and-ride facility will be

located.

To sum up, we are requesting the committee’s assistance with all

three of the issues presented today. We appreciate the time and the

attention of the committee to these important issues. We ask that

you address these issues in the reauthorization of the highway bill.

Thank you. I would ask that my prepared statement be inserted

in the record in its entirety.

We welcome you back again as soon as you can get there.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Milonovich appears in appendix.]

The CHAIRMAN. Thank you very much.
98

I will have some questions for you in 1 minute.

Senator Murkowski, did you have an opening statement?

Senator MURKOWSKI. No, Mr. Chairman; I would rather just listen to the witnesses.

The CHAIRMAN. Okay.

We will now move to Mr. Garrigan. Please go ahead and proceed.

STATEMENT OF JAMES GARRIGAN, TRANSPORTATION PLANNER, RED LAKE BAND OF CHIPPEWA INDIANS OF MINNESOTA, RED LAKE, MN

Mr. GARRIGAN. Good morning, Mr. Chairman, and members of

this Committee. My name is James Garrigan, Transportation Planner, for the Red Lake Band of Chippewa Indians.

On behalf of our chairman, William G. King, and the tribal council, I thank you and other distinguished members of this committee

for the opportunity to provide testimony concerning proposed

amendments to the Indian Reservation Roads Program, as contemplated under S. 281 and S. 725. Although only recently introduced and referred to the committee, I would like to take this opportunity to provide the committee with some initial feedback on

S. 1122 as well.

Before I comment on the subject bills, I would like to provide the

committee for the record a brief synopsis of the recently completed

TEA–21 negotiated rulemaking process for the IRR program. While

I appreciate the opportunity to represent the tribal caucus as a

tribal cochair on the Federal Tribal Negotiating Rulemaking Committee, I was disappointed with what I, along with the majority of

the tribe representatives on the committee, viewed as a blatant disregard for Congressional intent by the Federal representatives on

the committee.

While the committee’s tribal caucus met every challenge and

every imposed deadline, the BIA delayed the committee process for

months at every juncture. Because of the long delays by the BIA,

the tribes felt that they did not have sufficient time to properly negotiate key items that are important to tribes. As a result, there

are 13 major disagreement items that did not get properly addressed.

Although this was supposed to be a tribally-driven process, it

was far from it. The proposed rule was published with Federal language in place on the disagreement items. It appears that the final

rule will be published likewise. Many tribal committee members

feel that because of this, the entire negotiated rulemaking process

was a travesty.

The legislative reform effort by Congress 6 years ago was aimed

at removing many obstacles that hampered tribes in the past and

their attempt to administer the IRR program under self-determination or self-governance.

Again, despite the tribal reform language that exists in TEA–21,

we believe that it is necessary for the Congress to even more explicitly mandate that the Federal roads bureaucracy facilitate the

complete transfer of all authority and responsibility for the administration of the IRR program to those tribes so requesting, and to

legislatively enforce full tribal autonomy in the operation of the

program formerly operated by the U.S. Government.
99

Unless Congress does this by statute, certain Federal agencies

will never appreciate, and Indian tribes will never realize, the true

meaning of self-determination and self-governance.

The Red Lake Band is in general favor of S. 281 and S. 725. S.

281 contains provisions which hopefully will finally achieve what

Congress has intended for Indian tribes since the enactment of the

Indian Self-Determination and Education Assistance Act of 1975.

Passage of this bill would stop the loss of IRR program funding

that resulted with the application of the obligation limitation. S.

281 would also allow tribes to deal directly with the Federal Highway Administration on a government-to-government basis.

While the Red Lake and all Indian tribes throughout the country

appreciate the increased funding for the IRR program that Congress made available under TEA–21, the program is still critically

under-funded. The application of the obligation limitation requirement to these funds offset much of the benefit Indian tribes were

to receive through the increased funding.

Passage of this bill would help ensure that all funding allocated

for the IRR program remain available for distribution to Indian

tribes, a goal Red Lake fully endorses. The Red Lake Band has

been a strong advocate for Indian tribes having a direct relationship with the Federal Highway Administration. S. 281 would provide a vehicle to make this happen under a demonstration project.

The Red Lake Band has been at the forefront in demonstrating

that Indian tribes can deliver on programs that Congress has provided to further promote self-determination and self-governance.

Red Lake was one of the first tribes in the Nation to assume the

entire IRR program under Title IV of Public Law 93–638, as

amended. The documented success of this program serves as a

model for other tribes to follow.

Red Lake will also be at the forefront in demonstrating that Indian tribes can independently coexist with the Federal Highway

Administration without the involvement of the BIA. Red Lake also

supports the safety incentive grants as proposed in S. 281.

Moving on to S. 725, the Red Lake Band supports the provisions

of this bill that increases the amount of funding available for the

IRR. We feel that the increase in funding for the IRR program and

removing the obligation limitation will provide greater opportunities for jobs on Indian reservations. The Red Lake Band also supports the Indian rural transit program provisions in this bill.

Recently, another bill has been introduced by Senator Johnson

and Senator Daschle, S. 1122. This bill contains several provisions

that closely mirror those in S. 281 and S. 725. However, in the

short time between introduction of S. 1122 and the development of

this testimony, the Red Lake Band has not had an adequate opportunity to fully analyze and assess S. 1122.

Our initial impression, however, is that S. 1122 touches upon a

variety of transportation issues that are important to Indian country, but requires further refinement to ensure that the successful

gains in Indian program administrations are not adversely impacted unintentionally.

The Red Lake Band would also like to take this opportunity to

propose to the committee for consideration as part of the IRR program amendments a concept that we believe would help foster eco-
100

nomic development in Indian country. While a number of Indian

tribes receive IRR services either directly from the Federal Government, or through contracts or agreements under the Indian SelfDetermination and Education Assistance Act Authority, the BIA

continues to use a substantial portion of IRR funding to procure

IRR-related services from non-tribal contractors located far from

Indian communities.

As a result, the full benefit of this Federal funding often eludes

tribal communities because outside contractors deliver the referred

benefit or product on reservation but conduct most of the economic

activity off reservation so that little, if any, ancillary benefit is derived by tribal communities.

We are proposing that Public Law 93–638 authority be expanded

to include that if a beneficiary tribe chooses not to contract under

the Indian Self-Determination and Education Assistance Act, to

carryout an IRR function, and the BIA chooses not to provide the

function through direct services, then an Indian tribe having the

resources to perform the function would be eligible to contract the

work under the Indian Self-Determination and Education Assistance Act prior to the BIA offering the work to non-tribal contractors.

We believe that this provision would enable Indian country to

more fully benefit from Federal program funds.

In conclusion, Mr. Chairman, I was dismayed by some of the previous testimony I heard when the witnesses referred to the Federal

Government as owners of the roads in Indian reservations. That

ownership is beneficial ownership. The tribes actually own those

roads. Tribal governments are governments. They are elected governments and they are public authorities.

I was happy to hear Senator Johnson say that we need to amend

title 23 to correct this. Red Lake would be happy to assist your

staff in crafting some language to clear this up so we can move on.

I would ask that my prepared statement be inserted in the

record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Mr. Garrigan appears in appendix.]

The CHAIRMAN. Hopefully we might make some improvements,

including some of your suggestions, such as allowing tribes that

have road building expertise to contract with other tribes. I think

that would be a constructive amendment.

I have to tell you that I do not blame you for being somewhat

frustrated with how long it takes to get some things changed within the Bureau. In TEA–21, it was my amendment that required the

negotiated rulemaking authority. It has taken the Bureau over four

years to even get their rules in order from that.

In some cases they have two speeds over there: slow and stop.

Those are the two to choose from.

The danger with roads just keeps going on. Hopefully we can fix

some of the inequities of the last TEA–21 in this bill.

Thank you. Now we will proceed with Ms. Bullard.
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STATEMENT OF LORETTA BULLARD, PRESIDENT, KAWERAK,

INCORPORATED, NOME, AK

Ms. BULLARD. Thank you, Chairman Campbell and Senator Murkowski. Thank you for the opportunity to testify. My name is Loretta Bullard and I am president of Kawerak, which is a regional tribal consortium in Northwest Alaska. We have 20 federally-recognized tribes in our consortium. I also serve on the Alaska Federation of Natives’ Board of Directors.

Collectively, Alaska Natives own 44 million acres in the State of

Alaska, or just about 11 percent of the State. We have 229 widely

dispersed communities across the State. We have very few roads.

Much of our land was selected by the Native corporations for its

economic development potential. We need access to those resources.

Just to give you an idea of the size that we are dealing with, in

our service area it is 1 hour and 10 minutes north by a twin engine

plane, and 1 hour and 10 minutes west by plane, and 1 hour and

10 minutes south by plane. That is our service delivery area, which

is about 45,000 square miles. We have very few roads.

Our ground transportation system is very undeveloped in comparison to the rest of the United States. Most of our village streets

are no more than unimproved dirt paths. I have included color photographs for the committee. We have very little snow removal in

our communities. We use snow machines in between our villages

during the winter time as well as small airplanes because there are

no roads. We also use boats during the summer time.

While this hearing is being held to solicit recommendations and

comments on S. 725 and S. 281, I also want to speak to the NCAI

draft bill and S. 1122. We wanted to express our support for the

language contained in the NCAI draft bill that would change the

name of the Indian Reservation Roads Program throughout Title

23 to the Tribal Transportation Program. We feel that the language

better reflects the wide scope of the program.

We strongly support the appropriations as outlined in S. 1122.

We support excepting the IRR program from the obligation limitation, and support the increased appropriation for the bridge program. One of the bridges in our area, just to give you an idea of

how old it is, used to cross the Panama Canal. It is one of those

unbolt them and move them kind of bridges. It used to be the

Cushman Street Bridge in Fairbanks. Then when they replaced

that bridge, they moved it to our area.

We want to speak to the language in S. 725 that would require

the Secretary to verify the existence of all roads that are part of

the IRR system and to distribute funds based only on those roads.

We oppose that language because we feel that it would just continue to allocate funds based on the existing road mileage and

those areas without roads would continue to receive little, if any,

funds.

We support the language that would establish a minimum of $35,000 base per tribe for tribal transportation planning and bump

the 2 percent planning allocation to 4 percent. Using our Bering

Straits Region Tribes as an example, in March 2002 our tribes

were informed that they were eligible to apply for $1,125 as their

share of the Alaska 2 percent planning money. Bumping that to a

5-percent increase would bump their tribal transportation planning
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dollars to $2,812. That is enough for a round-trip ticket to Anchorage, plus some per diem.

I am not going to speak to all the areas that we support. I have

that in my written testimony, but I did want to mention areas that

we are suggesting be changed. We are suggesting that section 106

of S. 1122, whereby it requires the Secretaries to establish a joint

IRR Coordinating Committee. We suggest that you need to add language there that would give that Committee some teeth beyond

being purely advisory.

It has been really frustrating contracting with the BIA for the

roads program for the last 5 or 6 years. It is just about impossible

to get things done, or make changes to the system. It is very frustrating.

We oppose the language contained in S. 1122, sections 202 and

203 which directs the secretary to make competitive grants available to establish tribal transportation safety programs. We think it

is a good idea, but the current language makes funds available only

to those tribes on Indian reservations, or who have land under the

jurisdiction of the tribe. In the NCAI draft bill there was language

that made funds available to Indian tribes and tribal organizations

to establish tribal transportation safety programs. It is not necessarily tied to your land base.

In the last 5 years in our area we have had about 12 deaths due

to tribal transportation issues. We do have some safety concerns

that we would like to address.

In terms of some Alaska specific issues, we want to speak to our

inventory problems. One of the major problems with the existing

IRR program is that the funding formula used to distribute funds

nationally is based primarily on the inventory of IRR routes. For

Alaska, we have never had a true inventory. We have been working

on it for these last 2 or 3 years through funds that were made

available through the administrative capacity building funds, but

we are finding it extremely difficult to get our routes into the BIA

inventory. We have been finding that the information that you

need to submit or that the areas identified in the BIA manual keep

being reinterpreted to require different data sets or information

that needs to be included.

We have been working very hard on this for the past 2 years.

There are 189 tribes in the State of Alaska that have contracted

to do their inventory developments. We have been very limited in

our ability to get that information into the system. We feel that

needs to be addressed.

One example of how they are changing the rules is this. The latest road inventory checklist purports to require that a tribe have

an approved long-term transportation plan in effect before the inventory changes are made. We are still developing our inventory.

We do not have a long-term transportation plan that is going to

support the need to tweak the inventory.

We are also concerned that the BIA, since 1993, has had a 2-percent policy that limits the ability of areas to increase the inventory

by 2 percent over any given year. Alaska has never had a good inventory to start with. In 1993 the villages in the State were asked

to identify their number one project. That was all they were asked

to identify. One-third of the villages did not even respond. There
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are about 150 villages that identified their single priority project.

That became the Juneau Area Transportation Plan.

That is not an inventory. That is not a true reflection of need.

We encourage Congress to enact language that would direct the

BIA to include our village streets and primary access roads. We

have not even been able to get those into the inventory.

We are also suggesting that regional tribal transportation authorities be developed for Alaska. It is such a huge State. We recognize the need to work together. We are suggesting some language

that would create some regional transportation authorities under

the guidance of the tribes or the regional corporations, as decided

by people within the area.

I want to close by saying that we do support the road bonding

that was proposed by the Agua Caliente Band provision.

Thank you for this opportunity to testify. I would ask that my

prepared statement be inserted in the record in its entirety.

The CHAIRMAN. Without objection, so ordered.

[Prepared statement of Ms. Bullard appears in appendix.]

The CHAIRMAN. Thank you.

I have a lot of questions. I am going to submit those to you. If

you would put answers to those and submit them to the committee,

I would appreciate it.

I would like to ask a few questions at this time.

Ms. Bullard, I guess it has been about 3 years ago I went with

Senator Stevens to Alaska to visit some villages. We went to some

larger towns. One of the places we went to was Barrow. As I remember, they told us there were only 12 miles of road around Barrow. All the fuel and automobiles that were in town had to be

brought in by a barge. There was no road to go anywhere out of

Barrow. When you mentioned that a third of the villages did not

respond to the last request you had for an inventory, I can see that

if Barrow was considered one of the larger ones, some of the villages must have real problems with transportation. Now, in those

small villages, there must be many of them that do not have roads

to get to any outside main road. Is that correct or not?

Ms. BULLARD. That is correct. The majority of the communities

in the State do not have access to roads. Nome probably has 300

miles of road.

The CHAIRMAN. So they have to fly in or fly out, or go by snow

mobile, barge, or some other way. Okay, thank you.

President Shirley, several of the members have talked a little bit

about bonding for roads. With the Navajo having almost 10,000

miles of roads, mostly unpaved and many of them unimproved, if

you rely strictly on Federal IRR funding, it is going to take forever

to get the job done.

Would you be supportive of that area of tribal road construction

bonds to leverage additional road building capital?

Mr. SHIRLEY. Yes; we would, Chairman Campbell. We are doing

what we can right now to even at that on our own. There is every

possibility of doing that.

The CHAIRMAN. That would bring up another question, then.

Those Indian communities that have access to a steady income

stream, they are going to be better able to repay those bonds, to
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pay off the bond holders, how would you envision the Navajo Tribe

paying off bond holders?

Mr. SHIRLEY. We are trying to do what we can to put some

money aside to do just that, some of the general revenues that

come in from coal royalties, or gas royalties, to set some of that

aside so that when we do bonds, that we would have a revenue

stream to pay on the bonds.

We also have a fuel excise tax that the Nation’s Council also put

into force. We are also looking at that as a revenue stream to pay

the bonds that we might float to do roads.

The CHAIRMAN. To Chief Smith, and maybe to Chairman

Milonovich, in many cases the success of the IRR program is, in

part, due to the ability of the tribes to partner with respective

States to build roads together. In fact, when I was out visiting with

the Agua Caliente Band, Chairman Milonovich showed us one road

and bridge that they were interested in getting some Federal help

for, but I assume there is going to be some partner with the local

communities, too.

Chief Smith, have you attempted to work with the State of Oklahoma on any reservation road projects?

Mr. SMITH. Yes; we have. We have had a very innovative program to work with the counties and cities. We actually use funds

that we derive from a compact with the State in the issuance of

our own automobile tags, to provide material for local counties.

They come back and do the labor. We have investigated many innovative ways to work with local communities and with the State of

Oklahoma.

The CHAIRMAN. With the case of Oklahoma, you have a very

strong Indian presence in your legislature with Kelly Haney and a

few other senior members there. I would think that you have a

really good voice in your legislature. In many States tribes do not

have that strong voice in their legislature.

In the case of the Agua Caliente Band, Richard, you mentioned

one area that is an interchange. Was that the area that you

showed us, the bridge and the widening of that road. Is that the

same place when we were out there.

Mr. MILONOVICH. No; the other was more to north of the city. It

is right on the interstate.

The CHAIRMAN. Oh, I see. It is right on the interstate. Okay.

Thank you.

Mr. MILONOVICH. We are working together with the city of Palm

Springs as well as the Coachella Valley Association of Governments

consisting of nine cities, two tribes, and the county working together on transportation issues which affect the entire Coachella

Valley. We are working quite closely with everyone.

The CHAIRMAN. I know that you do that very well with your

tribe. I am always an admirer of how well you work with local

county and city governments.

Mr. Garrigan, you talked somewhat about the BIA soaking up a

lot of the funding for administrative costs. Someone, and perhaps

it was Mr. Smith, mentioned that they do the engineering themselves and they have it approved by the next level, and it goes

through two or three approvals. Then it has to be submitted to the

Bureau for their approval. Then, of course, they are keeping 6 per-
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cent. Basically all they are doing is rubber stamping all of the work

that you already did. Has that been your experience, too?

Mr. GARRIGAN. Yes; it has. We have all of our work done by licensed professional engineers. The second level review is also done

by a licensed professional engineer.

The CHAIRMAN. What do you suppose the Bureau does for 6 percent?

Mr. GARRIGAN. Give it a cursory review. They take a look at it

and say, ‘‘Okay, we will stamp it.’’

The CHAIRMAN. All right. Thank you. I have no further questions.

Senator Murkowski, do you have any questions? You have one of

your constituents here today.

Senator MURKOWSKI. Just very briefly.

Mr. Chairman, it is tough to see in this corner here. I appreciate

the testimony. I particularly appreciate your providing copies of

some of the pictures. I think the pictures are quite compelling.

One of the difficulties that we have in Alaska is just educating

folks on our lack of a transportation system. When you have indicated that many villages did not submit comments as to their plan,

it is because if you are a community that does not have roads, if

you are a community that is connected by a boardwalk, and you

go everywhere by snow machine or a four wheeler or a river boat,

you do not need to submit a transportation road plan because there

is no recognized road system. That is one of the huge difficulties

that we have as a State.

I also appreciate your comments about the inventory and the

lack of an inventory in Alaska and how essentially we are shortchanged on that process. Mr. Chairman, I would just like to indicate for the record that I would certainly support the appropriations funding for the roads and the increase in the funding for the

Indian roads, but would urge the BIA to work with the State of

Alaska on this inventory issue to make it work.

The question I would ask to you, Ms. Bullard, is, as it relates to

the inventory, is there anything that you can suggest or propose

that we can do to make that process work for us right now?

Ms. BULLARD. One thing that we have requested is a definitive

description of what needs to be included in the inventory. Every

time we turn around, the requirements keep changing. I think that

would help. But I think the other thing that needs to be done is

that a requirement that our basic infrastructure in our villages be

included in the BIA roads inventory. By limiting us to 2 percent

of what has been previously in the system, there has never been

a complete inventory in the State. We are trying to do that. We

have identified many roads that should be in the inventory, but

they are not being put in because there is a two percent limitation

on increases. We feel that is very unfair to the State of Alaska and

does not reflect the true need of our communities.

Senator MURKOWSKI. We would like to work with you on that

and make it work.

Mr. Chairman, I appreciate the opportunity to ask the question

and to hear the testimony of the witnesses today. Thank you.

The CHAIRMAN. Thank you.
106

I have one more question of Ms. Bullard. These pictures that you

submitted for the record for us, but one just came to mind here.

One is a picture of the main street of Wales, AK, and one picture

of the main street of Shishmaref. It looks to me that that snow is

clear up to the top of the roof; is that right?

Ms. BULLARD. Yes; in many of the houses there you actually have

to dig tunnels to get into the homes. They do not do any snow removal during the winter time.

The CHAIRMAN. That was going to be my next question. How the

heck do you move that much snow? The automobiles in that town

just sit there during the winter.

Ms. BULLARD. They sit during the winter. They use snow machines and four wheelers during the winter time.

Just to use an example of that. I think it was in 1998 that the

Assistant Secretary for Indian Affairs at that time, Kevin Gover,

had gone to Shishmaref. Then we took him to Wales. On the day

we took him to Wales, people were going from Wales to Diomede

which is 40 miles off the mainland, because there are no ferries.

There are no large boats. They do not bring any freight barges into

that community. People actually run snow machines and four

wheelers between Wales and Diomede in small 20 to 25 foot boats.

The day we were going there, they lost an entire boatload of individuals that were trying to travel between Wales and Diomede.

They had been sitting in Wales waiting for the weather for about

3 weeks. They decided to go ahead and go because there is no commercial transportation in their community.

The CHAIRMAN. How do you get from Wales to Shishmaref. Is

that through a barge?

Ms. BULLARD. You can take an airplane between Wales and

Shishmaref.

The CHAIRMAN. How far is that?

Ms. BULLARD. I would say that is about 50 or 60 miles.

The CHAIRMAN. How did you get Kevin there?

Ms. BULLARD. We flew him in a twin. But between Wales and

Diomede, the only way to get into Diomede is they have once-aweek helicopter service. There is no airport in the summer time.

It is a winter sea-ice air field.

The CHAIRMAN. Big problems.

Senator MURKOWSKI. Mr. Chairman, if I could, I would just ask

Ms. Bullard.

The CHAIRMAN. Certainly.

Senator MURKOWSKI. Do you have any idea of how many vehicles

you actually have on Wales?

Ms. BULLARD. In Wales. I do not know. I have not been to Wales

recently.

Mr. MILONOVICH. My experience has been that you get out to

these remote communities that are on islands and you have 1

dozen vehicles.

Ms. BULLARD. In some of the communities, yes. But they do all

have four wheelers and snow machines.

Senator MURKOWSKI. Which is the primary means of getting

around.

Ms. BULLARD. There are getting to be more and more vehicles in

the villages.
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The CHAIRMAN. Thank you.

We will submit some questions for the rest of the committee. If

you can, get those back to us by June 18 because we want to use

our bill as part as an amendment to the new TEA–21 bill.

We will hold the record open for 2 weeks.

Thank you for appearing.

The Committee is adjourned.

[Whereupon, at 11:47 a.m., the committee was adjourned, to reconvene at the call of the Chair.]

(109)

APPENDIX

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

PREPARED STATEMENT OF MARK MARYBOY, CHAIRMAN, NAVAJO TRANSPORTATION

AND COMMUNITY DEVELOPMENT COMMITTEE

My name is Mark Maryboy and I am the chairman of the Navajo Transportation

and Community Development Committee. I would like to begin by thanking this

committee for all of their hard work on this issue. My remarks today are limited

to S. 281 and S. 725. However, the Navajo Nation sincerely appreciate all of the

bills that have been introduced and look forward to working with you to promote

the final bill that is passed out of this Committee.

I would like to begin my comments about S. 281 by saying that the Navajo Nation

is working very hard on its own economic development. We have much to overcome.

The unemployment rate on the Navajo Nation currently ranges seasonally from 36

percent to 50 percent. Our per capita income averages $6,123, which is less than

one third of that in Arizona or New Mexico.

The commercial vehicle driving training program proposed in S. 281 could greatly

help develop the Dine workforce. With a land base that is larger than the states

of Connecticut, Delaware, Maryland, Massachusetts and Rhode Island combined, the

Navajo Nation is long-haul territory. In fact, it would be difficult to make a commercial delivery from any place west of Durango, CO to any place east of Flagstaff, AZ

without going through Navajoland. The Navajo people are used to driving great distances and might as well get paid for it.

Like S. 281, S. 725 reflects the Navajo Nation’s goal to promote self-determination. Both bills authorize a demonstration project that would enable tribes to apply

directly to the Federal Highway Administration for Indian Reservation Road funding so tribes could take care of their own roads and bridges without relying upon

the BIA. While this is an approach that the Navajo Nation has not yet decided to

pursue, we support the desire of other tribes to do so. Both bills create an opportunity that should exist for tribes.

In addition, S. 725 contains key provisions that would help achieve our fundamental goal of making the IRR Program more fair and effective. Section 3 contains the

five changes the Navajo Nation believes are essential to improving the IRR:

No. 1. Increase funding. We understand the current constraints on the Federal

budget. That is why we support an incremental increase over the next 6 years. We

believe that such an approach is a judicious way to begin dealing with what BIA

estimates to be more than $9.8 billion of unmet transportation needs in Indian

Country.

No. 2. Exempt tribes from the obligation limitation. Since the passage of TEA–

21, which applied the obligation limitation to tribes, the IRR Program lost $200 million it was otherwise authorized to receive. That capital leakage is staggering when

you consider that $200 million is roughly equivalent to the Program’s total annual

funding in 1998. While their unmet needs make tribes the least able to bear the

burden of the obligation limitation, Native Americans and Alaskan Native Villages

are experiencing a disproportionate brunt of its effect.
110

No. 3. Create a tribal bridge program. Tribes must currently decide whether a

bridge or a road project is their higher priority in order to receive funding. That is

a choice no community should have to make. On Navajo, we have 173 bridges, 27

of which need complete replacement and 24 of which need major rehabilitation. A

separate IRR bridge program that includes funding for pre-construction is essential

for us to get a handle on these major safety concerns.

No. 4. Fair and Equitable Distribution. TEA–21 is a road construction program.

The Navajo Nation strongly believes that Federal lands highway dollars should

therefore be spent on actual road miles. We understand that our friends in Alaska

are currently having a difficult time getting a fair accounting of their road mile inventory and we encourage this Committee to develop a special project to remedy

that situation.

No. 5. Increase Planning Moneys. The Navajo Nation believes that planning is an

essential predicate to capacity building. Transportation planning on Indian reservations is needed more now than ever because of growing populations and new homeland security concerns. The Navajo Nation supports increasing the percentage of allocated funds tribes can use for transportation planning from the current level of

2 percent to 4 percent.

Finally, S. 725 provides authorization for two programs that are essential for tribal transportation departments to be able to more effectively protect their reservation’s people and environment. The Tribal Transportation Safety Program in Section

5 would authorize funding for tribes to launch buckle-up campaigns, anti-drunk

driving initiatives and projects to eliminate traffic hazards. Given the fact that reservation roads have long been known to be the most hazardous in the country, this

proposal is long overdue.

The Tribal Transit Program is also essential for us to be able to help people on

the reservation get where they need to go and improve or preserve air quality by

reducing vehicle traffic. The current obstacle to developing mass transportation on

reservations is the fact that tribes must go through the states to get funding. Section 6 of S. 725 would remedy this situation by enabling tribes to apply directly to

the Federal Transit Administration.

I would like to conclude by thanking you for your commitment to helping improve

the IRR Program. We look forward to partnering with the members of this Committee to ensure that IRR legislation is included as quickly as possible in the Federal

transportation legislation that is now winding its way through Congress.
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