Highways and Highway Safety on Indian Lands
Released: 2016-02-02T00:00:00

Introduction

The federal government holds about 56 million acres of land in trust for Indian tribes and individuals, an area approximately the size of Utah. Cars and trucks are the primary means of transportation on these lands, although airplanes, public transportation vans and buses, snowmobiles, all-terrain vehicles, boats, and other conveyances are important in some areas. The federal government supports highway transportation on Indian lands predominantly with grants and technical assistance. Most of this support is provided through the Tribal Transportation Program (TTP) that is jointly administered by the Federal Highway Administration (FHWA) in the Department of Transportation (DOT) and the Bureau of Indian Affairs (BIA) in the Department of the Interior (DOI).

This report discusses the TTP and other highway programs relevant to the tribes, such as the National Highway Traffic Safety Administration's (NHTSA's) State Highway Safety Program. The report also looks at the role of BIA's Road Maintenance Program. The Fixing America's Surface Transportation (FAST) Act ( P.L. 114-94 ), enacted in 2015, reauthorized the TTP and NHTSA's safety programs from FY2016 through FY2020. These programs are discussed in the context of the special relationship between the federal government and Indian tribes, and the existing physical condition and safety performance of highways on Indian lands. This report discusses several policy issues that are likely to be of ongoing concern, including the federal funding of highways on Indian lands, particularly for highway safety, and environmental review and rights-of-way.

Background

There are currently 566 federally recognized Indian tribes and 326 land areas administered by the federal government as Indian reservations. These reservations range in size from the 16 million acres of the Navajo Nation Reservation located in Arizona, New Mexico, and Utah to the Pit River Tribe's one-acre cemetery in California. There are also other types of Indian lands, including state-authorized Indian reservations. Indian reservations are typically rural, sparsely populated, and remote from services, such as medical centers, schools and colleges, and large retail stores. According to the 2010 Census, about 4.8 million people live in American Indian areas and Alaska Native villages. Of these people, 1.1 million identify as American Indian or Alaska Native.

Federally recognized Indian tribes are sovereign nations, but "subject to the overriding authority of the United States." This means "Indian tribes enjoy all the rights of sovereignty that have not been divested by Congress or that are not inconsistent with the tribes' dependent status ." Federally recognized tribes are eligible for federal services and benefits. Since the 1970s, federal policy toward Indian tribes has favored self-determination and, more recently, self-governance. The Indian Self-Determination and Educational Assistance Act of 1975 (ISDEAA; P.L. 93-638 ) gave tribes the power to contract with the federal government to directly administer federal funds in some policy areas including health and education. Amendments to ISDEAA authorized self-governance in which tribes receive federal funds as a block grant through a compact with the federal government. These compacts allow tribes to establish their own funding priorities.

Tribal self-determination and self-governance in transportation have been slow to develop relative to other policy and program areas. Because of its historical role in managing Indian lands, BIA administered the Tribal Transportation Program (formerly known as the Indian Reservation Roads Program) from its beginning in 1928, and funding for the program was provided through the DOI appropriations bill from the general fund of the U.S. Treasury. In 1979, BIA and FHWA signed an interdepartmental agreement for stewardship of tribal roads. With enactment of the Surface Transportation Assistance Act of 1982 ( P.L. 97-424 ), funding for the TTP was switched from the general fund to the Highway Trust Fund.

Tribal priorities for road and bridge funding were given more weight in the Intermodal Surface Transportation Act of 1991 (ISTEA; P.L. 102-240 ). But a turning point in tribal self-governance came in the Transportation Equity Act for the 21 st Century (TEA-21; P.L. 105-178 ), enacted in 1998, which authorized Indian tribes to administer federal road funding under contracts or compacts with BIA as permitted by ISDEAA (23 U.S.C. 202(b)(7)).

Another major change in the administration of the TTP came about as a result of the Safe, Accountable, Flexible, Efficient, Transportation Equity Act: A Legacy for Users (SAFETEA; P.L. 109-59 ), enacted in 2005. SAFETEA gave tribes the power to enter into contracts with either BIA or FHWA to provide oversight. In 2013, at least 110 tribes had agreements with FHWA. The FAST Act, enacted in 2015, provides authority for tribes to enter into compacts with FHWA. In conjunction with either BIA or FHWA, many Indian tribes administer federal funds for road maintenance, road construction, and road safety through their own tribal departments of transportation.

Characteristics of Highways on Indian Lands

Responsibility for public road infrastructure on and to Indian reservations lies with governmental entities at all levels, tribal, federal, state, and local. This is reflected in the National Tribal Transportation Facility Inventory (NTTFI), a database of existing and proposed roads that provide access to and within Indian lands. The NTTFI is maintained by law by BIA in cooperation with FHWA (23 U.S.C. §202(b)(1)(A)). Of the 157,000 miles of road listed in the NTTFI, 31,400 miles are BIA-system roads, 26,000 miles are tribal-system roads, and 100,000 miles are state and local government roads. About 145,500 miles of roads in the NTTFI currently exist and 11,500 miles are planned or proposed.

Comprehensive information on the characteristics and condition of roads on and providing access to Indian lands is unavailable, but data on BIA-system roads suggest that most are rudimentary and in poor condition. Although it is not unusual for rural roads to be unpaved, about 70% of BIA-system road mileage is unpaved. By comparison, about 53% of rural roads in Arizona are unpaved and 82% of rural roads in North Dakota are unpaved. BIA reports that in 2014, 17% of BIA-system road miles and 68% of bridges on this system were in "acceptable" condition. Unpaved roads are considered unacceptable by definition.

FHWA's National Bridge Inventory indicates that at the end of 2014 about 14% of BIA-owned bridges were classified as structurally deficient and 6% were classified as functionally obsolete (see Table A-1 for the breakout by state). Nationally, about 10% of bridges were classified as structurally deficient and 14% were functionally obsolete at the end of 2014.

A bridge is considered to be structurally deficient "if significant load-carrying elements are found to be in poor or worse condition due to deterioration and/or damage, or if the adequacy of the waterway opening provided by the bridge is determined to be extremely insufficient to the point of causing intolerable traffic interruptions." Functional obsolescence arises if a bridge does not meet current design standards or traffic demands. Reasons for functional obsolescence include a bridge handles more traffic than it was built to carry; its lanes or shoulders are narrower than those that would be built today; the overhead clearance is inadequate; and the roadway curve in the approach to the bridge is too extreme.

The different deficiency rates of BIA-owned bridges and of highway bridges nationally are likely explained by these definitions. Bridges on lightly traveled routes, a category that probably includes most roads on tribal lands, tend generally to be in poorer structural condition than bridges on heavily traveled routes and are therefore more likely to be structurally deficient. Functional obsolescence is usually related to growing traffic demands, which may be more likely among bridges in urban areas than among those rural tribal lands.

Highway Safety on Indian Lands

It is widely believed that motor vehicle crashes on Indian lands are substantially underreported in the NHTSA Fatal Accident Reporting System (FARS) database because tribes' reporting is voluntary, officials may not be trained in crash reporting, tribal record keeping may be inadequate, and computer systems may not be compatible with state systems. For this reason, and other reasons, such as the lack of vehicle miles traveled data, it is difficult to know how safe highways on Indian lands are. In a study of crashes on tribal lands in South Dakota in 2005, researchers documented 737 crashes from tribal and BIA law enforcement agencies, but only 53 of these were reported in enough detail to be included in the South Dakota Accident Reporting System (SDARS), which is the source of South Dakota data for NHTSA's FARS database. The study in South Dakota found that less serious crashes were the most underreported. Fatalities, while not reflective of all motor vehicle crashes, are more likely to be reported in crash databases.

According to NHTSA, 316 motor vehicle crash fatalities on reservations were reported in 2013, the most recent year for which data are available. A little more than half of the victims (180) were Native Americans.

The only national study of fatalities in motor vehicle crashes on Indian lands, conducted by the National Highway Traffic Safety Administration in 2004, found that the number of fatalities on Indian reservations increased by 47%, from 222 in 1975 to 327 in 2002, while fatalities in the nation as a whole declined by 3%. More recent data show that although fatalities on reservations have declined since 2006, they still remain higher than in the mid-1970s. By comparison, rural motor vehicle fatalities, only available from 1977, declined by 38% between 1977 and 2013 ( Figure 1 ).

Studies have identified a host of personal, vehicle, and environmental factors that may contribute to the safety trends on Indian lands highways compared with those on highways nationally and in rural areas. BIA's Indian Highway Safety Program (IHSP) states that "while nationwide data continues to be an issue, it is evident from the self-reported data from the Tribes, that alcohol impaired driving, speed and non-use of seat belts play a significant role in fatal and injury crashes on the reservations." Other factors that have been identified include road characteristics, accident response times by emergency services, low rates of child-seat use, and pedestrian safety. A study of pedestrian safety on Indian lands by FHWA, for example, found problems due to alcohol use by drivers and pedestrians, and lack of pedestrian facilities, such as traffic control devices and other treatments.

A survey of seat belt use funded by IHSP in 2013 found that seat belt use on reservations averaged about 70%, although rates differed across reservations from 36% to 91%. The national average of seat belt use in 2013 was 87%. An earlier study of seat belt use on reservations in 2004 and 2005 found overall seat belt use was 55%, ranging from 9% to 85%. This suggests that while seat belt use has increased on Indian reservations it remains lower than in the United States generally. According to NHTSA, one of the main factors that explains the wide variation in seat belt use is seat belt law on reservations. Seat belt use is highest on reservations with primary seat belt laws, lower where secondary laws exist, and lowest where there are no seat belt laws. Primary seat belt laws allow a law enforcement officer to stop a vehicle and issue a citation to a driver or passenger for not wearing a belt without any other violation of the law. Secondary laws allow a citation for not wearing a seat belt only when another traffic offense has been committed.

Highway safety on Indian reservations is complicated by the interjurisdictional nature of law enforcement. Traffic laws on reservation roads are the decision of tribal government, and may vary from those that apply on surrounding nonreservation roads. Enforcement of traffic laws on reservations can involve tribal police, BIA police, state highway patrol, and sheriff's deputies. The authority each has to stop, detain, and cite motorists for traffic violations can depend on the tribal status of the driver, the seriousness of the violation, and agreements between the tribe and nontribal law enforcement agencies. For example, on some reservations a speeding nontribal motorist can be stopped and detained by a tribal police officer but that officer may not be able to issue a citation without the help of a state or local police officer. Similarly, on some reservations nontribal police officers can stop and detain tribal members for violating traffic laws but cannot issue citations unless authorized to do so by the tribe.

Federal Highway Programs

Tribal Transportation Program

By far the largest federal program supporting highways on Indian lands is the Tribal Transportation Program, formerly the Indian Reservation Roads Program ( Table 1 ). Funding for the TTP in the FAST Act is authorized at $465 million in FY2016, an amount that increases to $505 million in FY2020. Funding for the program comes from the highway account of the Highway Trust Fund. These funds are primarily for the construction or reconstruction of roads on the NTTFI, although some can be used for maintenance. Currently, the maximum that may be used for maintenance is 25% or $500,000 of a tribe's allocation, whichever is greater (23 U.S.C. §202(a)(8)). In addition to construction and maintenance, TTP funding can be used for planning and research.

TTP funding is distributed according to a statutory formula based on a tribe's FY2011 funding share, tribal population, road mileage, and average funding for FY2005 through FY2012. Prior to this calculation an amount of supplemental funding is set aside and distributed to tribes within each region that receive less than the amount they received in FY2011. Funds are distributed directly to the tribes and do not pass through a state department of transportation. To receive funds, each tribe must establish a funding agreement with either BIA or FHWA.

The TTP funds are subject to several other set-asides. Some of these funds are used for administration by DOT and DOI. Other funds are distributed by FHWA on a discretionary basis for specific purposes. These specific purpose funds do not preclude tribes from spending formula funds on such projects. The set-asides are the following:

Up to 5% is reserved for administration of the program, including funding for Tribal Technical Assistance Program (TTAP) centers. TTAP centers are operated in cooperation with state departments of transportation and universities. Up to 2% is reserved for transportation planning. These funds are allocated to tribes that apply for transportation planning assistance. Up to 3% is reserved for a nationwide priority program for improving deficient bridges. Up to 2% is reserved for safety projects. These funds are distributed on a competitive basis by FHWA based on an identification and analysis of highway safety issues and opportunities on tribal lands.

Other Highway Programs

The FAST Act authorized a new Nationally Significant Federal Lands and Tribal Projects Program (NSFLTP) at $100 million per year, with funds coming from the general fund of the U.S. Treasury. In addition to projects on tribal lands, eligible projects include those on land managed by federal land management agencies, such as the National Park Service, the Forest Service, and the Bureau of Land Management. This program is for projects that are estimated to cost more than $25 million.

Funding for the Tribal High Priority Projects Program (THPP) was authorized in MAP-21 at $30 million per year in general funds, although no funding was appropriated. The FAST Act did not authorize funding for the THPP.

Tribal roads are eligible for emergency funding as part of the Emergency Relief (ER) Program (23 U.S.C. 125) that provides funding for the repair or reconstruction of roads that have suffered damage as a result of a natural disaster or a catastrophic failure from an external cause.

Federal Highway Safety Programs

Funds set aside for safety from the TTP go to the Tribal Transportation Program Safety Funds (TTPSF). Grants are made by FHWA to tribes through a competitive, discretionary process. Projects are funded in four categories that are weighted by funding goals: safety planning (40%), engineering improvements (30%), enforcement and emergency services (20%), and education (10%). In FY2014, after administrative costs, $8.5 million was distributed to 94 projects. These projects were from a total of 126 applications requesting a total of $27.1 million in assistance. FHWA provides a number of examples of projects receiving grants in FY2014:

The La Jolla Band of Luiseño Indians in California will receive $479,224 to better equip the tribe's emergency responders with supplies they need when responding to crashes or accidents on the winding mountainous roads in the area.

The Fort Peck Assiniboine Sioux Tribes of Montana will receive $180,000 to pave Poplar Airport Access Road, which is expected to improve response times of law enforcement and other first responders during emergencies.

The Kialegee Tribe of Oklahoma will receive $78,000 for the installation of a traffic signal in Wetumka at the intersection of US 75 and SH 9 to improve driver and pedestrian safety.

The Nome Eskimo Community in Alaska will receive $60,868 to improve warning lights near the Nome Elementary School, which will make it safer for pedestrians and drivers alike in the extended darkness of Alaska's long winter months.

Many tribes have used TTP safety funds to develop a tribal transportation safety plan. These plans are part of a larger effort at the regional and national level to improve transportation safety planning (23 U.S.C. §201(c)(5); 23 C.F.R. §973). To implement the strategic plan, BIA and FHWA established a Safety Management System Steering Committee consisting of five tribal transportation planning representatives, 11 federal agency delegates, and one FHWA tribal technical assistance contractor. Among other activities, since 2008 FHWA has sponsored tribal safety summits at the national and regional level.

Indian tribes also receive funding from NHTSA's State Highway Safety Program, commonly referred to as Section 402 safety grants. These funds are distributed by formula to states and territories, but with not less than 2% distributed to the Secretary of the Interior for use on Indian lands. In FY2015, $5.0 million was available for Section 402 safety grants on Indian lands. At the state level, these funds are administered by state highway safety offices. The Indian Highway Safety Program (IHSP) within BIA serves as the state highway safety office for Indian lands.

To receive Section 402 safety grants, recipient entities, predominantly states must develop and implement a highway safety plan. BIA's IHSP, the federal agency responsible for traffic safety on Indian lands, develops and implements a safety plan in coordination with the tribes. There were five categories of grants in FY2016: full-time law enforcement; overtime law enforcement; traffic records; child passenger safety seats; and impaired driving adjudication court.

BIA's Road Maintenance Program

The BIA's Road Maintenance Program received about $26 million in FY2015 in Tribal Priority Allocation from the Department of the Interior's appropriation. These funds go mainly for maintaining roads and bridges on the BIA system, although under current regulations these funds can also be used on non-BIA-system roads at the election of the tribe (25 C.F.R. §170.183). Acceptable road and bridge maintenance includes road surface patching, crack sealing, and striping; grading or smoothing of gravel or dirt roads; shoulder repair; vegetation control; culvert cleaning; snow and ice removal; and emergency repair work. Annual funding for the program over the past 10 years has ranged between $24 million and $28 million in nominal terms, except that an extra $150 million was made available in FY2009 as part of the American Recovery and Reinvestment Act of 2009.

Other Formula and Discretionary Programs

In addition to funds that are directly allocated to BIA and tribes, other federal highway funds may be available for tribal transportation. In most cases, these funds are apportioned to the states, and tribes must work with the state department of transportation to obtain them. For example, funds for the Highway Safety Improvement Program, administered by FHWA, are apportioned to the states, but public roads maintained by Indian tribes are eligible for funding.

FHWA and the Department of Transportation also administer some discretionary funding programs for which tribes are eligible. For example, in FY2014 the Department of Transportation awarded a $1 million grant under the Transportation Investment Generating Economic Recovery (TIGER) competitive grant program to the Mandan, Hidatsa, and Arikara Nation to study and update plans because of the rapid development of oil and gas exploration and extraction on the Fort Berthold Reservation in North Dakota. An FY2013 $8.8 million TIGER grant was awarded to the Oglala Sioux Tribe to pave an 18-mile stretch of BIA 2, a gravel road in the Pine Ridge Indian Reservation in South Dakota.

Policy Issues

Funding

Because of the generally poor condition of highways on Indian lands and the problem with highway safety, there have been proposals for large increases in funding for programs that directly fund the construction and maintenance of highways on Indian lands. Because of the modest nominal increases in funding for the TTP in the FAST Act, funding is likely to remain an issue of concern.

During the debate over reauthorizing MAP-21, for example, a coalition of tribal groups proposed increasing funding for TTP and associated programs from the FY2015 level of $450 million to $960 million in the first year of a multi-year authorization. This would have included $800 million for the TTP, $75 million for the bridge program, $30 million for the Tribal High Priority Projects Program, and $50 million for a new National Tribal Asset Management program, mirroring a program for states. The coalition proposal also called for a portion of TIGER grant funds be set aside for tribes and that the law allow creation of a Tribal Infrastructure Bank. To gain more funding certainty, the proposal sought to authorize all program funding from the Highway Trust Fund. Most of these recommendations were not incorporated into the legislation.

Highway Safety

Funding for safety program is also likely to remain an issue for Indian tribes. The tribal coalition proposal argued for increased funding by directing funds from highway safety programs to tribes, such as a 2% set-aside from FHWA's Highway Safety Improvement Program (HSIP). It also proposed raising the set-aside of Section 402 grant funding from 2% to 3.5%. Neither proposal was included in the FAST Act. If these set-asides had been applied to the FY2015 authorization, tribes would have received approximately $8 million extra in direct funding for safety-related projects.

The FAST Act requires two studies by the Secretary of Transportation pertaining to highway safety on tribal lands: one on the quality of transportation safety data collected on tribal lands and the other on identifying and evaluating "options for improving safety on public roads on Indian reservations" (§1117 (c)(1)).

Environmental Review and Rights-of-Way

Although tribes have the option of entering into agreements with either FHWA or BIA to oversee transportation projects, BIA retains responsibility for BIA-owned lands or lands held in trust. This has become an issue in the environmental review of projects pursuant to the National Environmental Policy Act (NEPA). FHWA and BIA have different requirements for projects that involve similar right-of-way circumstances, and a tribe needs approval from BIA on BIA-owned or trust land even if the tribe has an agreement with FHWA. In certain situations, BIA will require a more resource-intensive environmental assessment when FHWA will process the request as a less resource-intensive categorical exclusion. As the Department of Transportation Inspector General notes the following:

BIA requires environmental assessments for existing roads if the tribe needs to establish or amend a right-of-way, whereas FLH [Federal Lands Highway] grants categorical exclusion in these cases. Consequently, BIA determinations on the required level of environmental review could reverse FLH's decisions regarding NEPA requirements. According to FLH and tribal officials, BIA's requirements for environmental assessments—in cases where FLH does not require them—results in unnecessary effort, time, and cost for the tribes.

A legislative option would be to require BIA to apply DOT regulations when implementing NEPA. Relatedly, there have been proposals to allow tribes the option of assuming NEPA responsibilities like the states currently have. It is believed that this might speed the approval of transportation projects. However, a tribe making this election would have to waive sovereign immunity to allow itself to be sued in federal court to carry out the responsibilities of a federal official.

Part of the problem with rights-of-way in Indian Country is the complexity of land ownership and rights. Additionally, documentation of existing rights-of-way is often poor. To aid transportation projects, there have been proposals for the clarification of BIA's authority to provide documentation on existing rights-of-way and to provide BIA and the tribes the authority to acquire rights-of-way when necessary. There have also been calls for the authorization of $10 million per year from the Highway Trust Fund for BIA to develop a comprehensive computerized national database of rights-of-way.

Deficient Bridges