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Tribal Transportation, the Indian Reservation Roads (IRR) Program, and the Federal Highway Administration’s (FHWA) Implementation of Related SAFETEA-LU Provisions

Statement of

John R. Baxter
Associate Administrator for Federal Lands
Federal Highway Administration
U.S. Department of Transportation

Hearing on

Transportation Issues in Indian Country

Before the

Committee on Indian Affairs
U.S. Senate

July 12, 2007

Chairman Dorgan and Members of the Committee, thank you for the opportunity to testify today on tribal transportation, including the Indian Reservation Roads (IRR) Program and the Federal Highway Administration’s (FHWA) implementation of related SAFETEA-LU provisions.


            The IRR system provides access to and within Indian reservations, Indian trust land, restricted Indian land, eligible Indian communities, and Alaska Native villages.  The IRR Program serves over 560 federally-recognized Indian Tribes and Alaska Native villages and currently consists of over 82,000 miles of road, 4,500 bridges, and other transportation facilities.  These facilities link housing, schools, emergency services, and places of employment, as well as facilitate employment and resource use. 

            More than 2 billion vehicle miles are traveled annually on the IRR system, even though it is among the most rudimentary of any transportation network in the United States.  Over 66 percent of the system is unimproved earth and gravel.  Approximately 24 percent of IRR bridges are classified as deficient.  These conditions make it very difficult for residents of tribal communities to travel to hospitals, stores, schools, and employment centers. 

            The poor road quality also affects safety.  Recently, U.S. Secretary of Transportation Mary E. Peters announced that traffic deaths on U.S. roads were down slightly in 2006 according to preliminary figures, but far too many lives continue to be lost.  The annual fatality rate on Indian reservation roads continues to be more than 4 times the national average.  This is a very serious problem.  The Administration is committed to providing safe, efficient transportation for both residents and visitors, for access to and within Indian lands and Alaska Native villages, while protecting the environment and cultural resources.

            The Safe, Accountable, Flexible, Efficient Transportation Equity Act – A Legacy for Users (SAFETEA-LU) includes several provisions to improve the IRR system, with a particular focus on safety.  SAFETEA-LU also strengthens the direct relationship between FHWA and the Tribes, including the authority to enter into direct funding agreement with Tribes and the requirement for FHWA to conduct a National Indian Reservation Road Inventory.

Status of SAFETEA-LU Implementation


Indian Reservations Roads Program

As authorized under SAFETEA-LU, the Federal Lands Highways Program  (FLHP) receives almost a 27 percent increase for the 5-year period of the Act compared to the last five years of Transportation Equity Act for the 21st Century (TEA-21) -- a total of approximately $4.5 billion over the life of the Act.  Direct transfer of apportioned funds to a Federal agency, upon State request, is now allowed.  FLHP funds also can be used as the State or local match for most types of Federal-aid highway or transit funded projects that provide access to or within Indian lands.

The IRR Program, in particular, received a substantial increase in funding.  IRR Program levels range from $300 million in fiscal year (FY) 2005 to $450 million in FY 2009, for a total of $1.86 billion over the life of the Act.   The funds are distributed according to a formula based on tribal shares, which was implemented through a negotiated rulemaking with tribal governments.  Also, SAFETEA-LU increased the eligible uses of the IRR Program funds by allowing a Tribe to utilize up to 25% of its share of funds for road and bridge maintenance activities.

            SAFETEA-LU also replaces the previous set-aside with a separate authorization totaling $70 million ($14 million per year) for the IRR Bridge Program (IRRBP) to help design and rehabilitate deficient bridges in Indian Country.  Under SAFETEA-LU, the total amount of funding for the IRR Program, including the IRRBP, is $1.93 billion.   This is a 40% increase over the funding provided for a comparable period in TEA-21. 

National Scenic Byways Program

Indian Tribes have participated in the National Scenic Byways Program since its inception under the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA).  From 1992-2005 (prior to SAFETEA-LU), FHWA provided at least $3.4 million for projects on byways with direct tribal involvement or for byways crossing tribal lands.  SAFETEA-LU amended section 162 of title 23, United States Code, to provide the Secretary of Transportation the authority to make grants directly to Indian Tribes and to allow Indian Tribes to nominate Indian roads directly to FHWA (without going through a State department of transportation) for possible designation as a National Scenic Byway or American Road.

FHWA has participated in tribal transportation conferences to inform Tribes of these changes to the National Scenic Byways Program.  FHWA also has worked with the America’s Byways Resource Center (Duluth, MN) to establish a tribal liaison position within the Resource Center.  The liaison started work in May 2007, and will provide technical assistance to Indian Tribes in establishing tribal scenic byways programs and designating roads as Indian Tribe scenic byways. 

In addition, FHWA has modified its grant application procedures so Indian Tribes may submit grant applications directly to FHWA and has included information on tribal participation in the National Scenic Byways Program.  In FY 2006, Tribes submitted five applications directly to FHWA and eight applications through the State departments of transportation, requesting a total of $1.3 million.  The Department selected 12 of the projects, providing a total of $789,816.  Nationwide, FHWA received 417 applications requesting $53.4 million, and $25.5 million was provided for 309 projects.

Public Lands Discretionary Program

            The Public Lands Highway Discretionary (PLHD) program provides funding to any project eligible under title 23, United States Code, that is within, adjacent to, or provides access to Federal public lands.  For FY 2007, there are $87.3 million available for the PLHD program.  In FY 2007, unlike the past several years, projects for PLHD program funding were not designated by Congress. Applications for the PLHD program are being evaluated based on whether the specific project meets the statutory criteria for the program and how well the project addresses the Department’s priorities of improving safety and reducing congestion.   For each application, we will consider the benefit of the safety improvement, the need for the safety improvement, and the likelihood of expediting implementation of the improvement.  A similar analysis will be done for congestion relief.  We are in the process of reviewing applications now, and will be announcing awards this summer. 


Road Safety Audits

In recognition of the need to improve safety on Indian reservation roads, FHWA has conducted several road safety audits (RSA) with Tribes.  An RSA is a formal safety performance examination of transportation systems within a reservation or Alaska Native village and is an effective tool for identifying existing safety issues and eliminating them through improved planning and design. To promote their benefits, FHWA sponsored training on RSAs and Road Safety Fundamentals with four Tribes this past year -- Tohono O’odham and Navajo Nations (in cooperation with the AZ DOT and others), Santa Clara Pueblo and Jemez Springs Pueblo (in cooperation with the NM DOT), and Standing Rock Sioux (in cooperation with ND and SD DOT).  This training specifically targeted local and tribal transportation experts.  A document summarizing the findings and lessons learned will be completed by the end of this year.  Additional RSAs are planned for later this fiscal year. 

Also, FHWA, with the help of the Tribal Technical Assistance Program (TTAP), continues to provide technical assistance and training to Tribes on conducting their own RSAs.  For example, FHWA has provided funding and support to the Northern Plains Tribal Technical Assistance Program to sponsor a Road Safety Audit Outreach Coordinator, who has provided training and RSAs for the Spirit Lake Nation, the Winnebago Nation, and others.

Safe Routes to Schools

The Safe Routes to School program is a federally funded, but State managed and administered grant program established by section 1404 of SAFETEA-LU.  Each State receives not less than $1 million each fiscal year to plan, design, and construct infrastructure-related projects that will improve the ability of students to walk and bicycle to school.  Safe Routes to Schools funding also may be used for non-infrastructure-related activities to encourage walking and bicycling to school.  FHWA has determined that federally recognized Tribes are eligible sub-recipients of this State administered program.  Most States are in the early stages of implementing this new program.  States with high tribal populations, such as those in the Southwest, are reaching out to tribal groups and encouraging them to apply for funding. For example, in Arizona, the Safe Routes to School coordinating committee includes tribal representatives from the Tohono O’odham and Navajo Nations.

High Risk Rural Road Program

SAFETEA-LU established a new safety program, funded as a set-aside at $90 million per year, known as the High Risk Rural Roads Program (HRRRP).  This federally funded, State administered program is intended to reduce fatalities and injuries on small rural roads with above average crash rates.  Tribal roads that meet the criteria for improvements are eligible for the funding.  FHWA has undertaken extensive outreach to Tribes on the HRRRP, including developing and disseminating guidance and making presentations at a variety of conferences, including National and Regional Tribal Transportation Symposia, and Local Technical Assistance Program and TTAP meetings. 


Indian Reservation Road Program Changes

SAFETEA-LU made significant changes to the IRR Program and the Federal Transit Program that will greatly assist tribal transportation.  Tribes meeting eligibility requirements now have the option of entering into IRR Program agreements directly with FHWA for their respective share of IRR Program funding.  Section 1119 of SAFETEA-LU amended the IRRBP to allow funding for preliminary engineering activities for the replacement or rehabilitation of structurally deficient or functionally obsolete IRR bridges.  As a result of the changes to the IRRBP, in consultation with the Indian Reservation Roads Coordinating Committee (IRRCC), FHWA issued a notice of proposed rulemaking (NPRM) on June 5, 2007.  The NPRM proposes a number of changes, including an explanation of the priority process for both Bureau of Indian Affairs (BIA) and non-BIA owned bridges, separate queues for both construction and preliminary engineering, and a reduction in the funding ceiling for construction of non-BIA owned bridges. 

Section 1119(k) of SAFETEA-LU allows Tribes and States to enter into road maintenance agreements for which the Tribes assume the maintenance responsibility for the State on Indian Reservation Roads.  These Agreements are negotiated directly between the State and Tribe.  FHWA has provided an annual report to both the Senate and the House in each of the past two years with the results of these agreements. 

Deputy Assistant Secretary for Tribal Government Affairs

Section 1119(l) of SAFETEA-LU requires the Department of Transportation to have, within the Office of the Secretary, a Deputy Assistant Secretary for Tribal Government Affairs appointed by the President.  The duties of the Deputy Assistant Secretary are to plan, coordinate, and implement the Department of Transportation policy and programs serving Indian tribes and tribal organizations and to coordinate tribal transportation programs and activities in all offices and administrations of the Department and to be a participant in any negotiated rulemaking relating to, or having an impact on, any projects, programs, or funding associated with the tribal transportation programs.  Currently, the Deputy Assistant Secretary for Intergovernmental Affairs is carrying out the functions prescribed for the Deputy Assistant Secretary for Tribal Government Affairs, including coordinating tribal transportation programs within the Department.

Direct Funding Agreements with Tribes

In the past, Tribes worked directly with the BIA Regional Offices on IRR programs and projects, either through Direct Service Agreements, Self-Determination Act Contracts, or Self-Governance Agreements, and BIA and FHWA administered the IRR Program with FHWA oversight.  Now, eligible Tribes are able to enter into Referenced Funding Agreements directly with FHWA for their respective share of IRR Program funding to carry out the Tribes’ IRR programs or projects in accordance with the Indian Self-Determination and Education Assistance Act.  While the BIA has retained its program management and oversight role on a national and regional level, these agreements have increased the FHWA-Tribal government relationship on both a program and project level. 

            Under these direct agreements, the amount a Tribe receives equals the amount of funding that the Tribe would otherwise receive in accordance with the formula for distributing IRR Program funds, plus an amount, as determined by the Department of Transportation, that would otherwise be withheld by BIA for program or project administration.  A Tribe assumes all powers, functions, and duties that the Secretary of Interior would have performed and that are not inherently Federal or cannot be transferred.  The agreements identify the roles and responsibilities of each party, as well as the specific work that is to be performed with the funds being received.  A Tribe is eligible to participate if it can provide conclusive evidence of financial stability and management capability during the preceding three fiscal years.  Conclusive evidence exists if the Tribe had no uncorrected significant and material audit exceptions in their annual audits.

        To date, five Tribes have entered into these agreements with FHWA – the Standing Rock Sioux Tribe from North and South Dakota, the Ramah Navajo Chapter from New Mexico, the Chickaloon Native Village from Alaska, the Assiniboine and Sioux Tribes of the Fort Peck Reservation from Montana, and the Oglala Sioux Tribe from South Dakota.  We currently are in negotiations with two additional Tribes and letters of inquiry and interest have been received from several more Tribes.  FHWA and the initial five Tribes are currently working together through this first construction season.  Technical assistance with various phases of existing and new projects, as well as capacity building, is being provided by FHWA.  Together, we and the respective Tribes are dedicated to making these agreements successful.

National Indian Reservation Road Inventory

SAFETEA-LU requires FHWA to complete a comprehensive national IRR inventory of eligible transportation facilities and report to Congress by November 2007 (23 U.S.C. 202(d)(2)(G)).  The purpose of the inventory is to develop the true need and cost for tribal transportation, to ensure that the data in the existing inventory is accurate, and to help streamline the procedures that Tribes utilize for updating their inventory.   The inventory is the most significant factor used to calculate the tribal shares of IRR Program funding.   Hence, it is imperative that a Tribe’s data shown in the inventory be as accurate as possible.   

The inventory includes, at a minimum, all transportation facilities eligible for assistance under the IRR program that a Tribe has requested, including all facilities in the BIA inventory since 1992, facilities constructed or reconstructed with Highway Trust Fund dollars (other than the Mass Transit Account) under the IRR program since 1983, facilities owned by an Indian tribal government, primary access routes, and community streets or bridges within the boundary of a recognized Indian community or reservation or Alaska Native village.

FHWA is nearing completion on the initial task of gathering information for the inventory.  This extensive activity has included reviewing existing data for completeness, carrying out on-site surveys of more than 400 individual sections of road throughout Indian Country to verify correctness of data, addressing and correcting regional and national structural and cost data of the inventory and working with the BIA and Tribes to eliminate the barriers that have caused rejection of data or restriction of tribal input to the existing system.  FHWA, BIA, and the IRRCC have all worked together to eliminate roadblocks and inconsistencies in the current inventory system, to allow easier access to the system, and to develop clearer instructions on actual submission requirements.  In addition, FHWA is working directly with Tribes, BIA, and other State and Federal agencies to collect data on established costs of other eligible facilities not yet included in the existing inventory that are eligible for use of IRR Program funds.  Although these facilities currently are not included in the formula used to calculate the amount of funding that each Tribe receives annually, this data will help in the determination of the true national needs of the tribal transportation systems. 

The fluidity and constant evolvement of the inventory makes this effort a “snapshot” in time and interim in its nature.  For instance, a road may be in the inventory as a gravel surface road, but may be paved in the future.  This change will require the inventory to be updated to reflect this new surface type and other changed conditions.  FHWA plans on updating this national IRR inventory annually as part of a continuing effort of all parties involved to ensure that the national IRR inventory reflects the true needs of tribal transportation, but, more importantly, is equitable and fair for all Tribes.


FHWA staff has visited tribal governments over the past several years to see firsthand the transportation infrastructure on reservations and also has met with individual Tribes during the annual National Tribal Transportation Conference.  We have seen and heard about successes and partnerships between Tribes and States, but we also have seen roads and infrastructure that are not at an acceptable level.  FHWA continues to work with numerous tribal and State transportation organizations, the IRRCC, as well as the BIA in carrying out informational meetings and presentations covering many transportation issues and potential funding opportunities in locations across the country.  These meetings and visits give FHWA a valuable perspective on the state of tribal programs and help to identify program strengths and weaknesses.

TTAP continues to be a valuable and popular program with tribal governments.  The purpose of our seven TTAP centers is to foster a safe, efficient, and environmentally sound surface transportation system by improving the skills and increasing the knowledge of local transportation professionals.  This year FHWA re-competed and awarded new cooperative agreements for TTAPs for the California-Nevada and Alaska regions, since the prior agreements expired.  FHWA awarded the California-Nevada region TTAP to the National Indian Justice Center in Santa Rosa, California, and the Alaska TTAP to the University of Alaska Fairbanks Interior-Aleutians campus.  While some have expressed concerns about the change in the TTAP center for Alaska, FHWA is confident that the cooperative agreement will be beneficial for delivering training, technical assistance, and information to Alaska Native Tribes, villages and communities.

            FHWA also participates in research and outreach efforts to gather and disseminate information important to tribal transportation.  Recently, FHWA contributed to the Transportation Research Board’s (TRB) study to provide information useful to tribal governments and Federal, State, and local agencies to help in determining the state of tribal transportation programs and the steps needed to assist Tribes in developing the capacity to perform and manage effectively transportation-related functions.  This effort was authorized by the American Association of State Highway and Transportation Officials (AASHTO), through the National Cooperative Highway Research Program (NCHRP).  TRB published the results of the study May 29, 2007, in a report entitled “NCHRP Synthesis 366, Tribal Transportation Programs: A Synthesis of Highway Practice.”


            Transportation is a critical tool for Tribes to improve the quality of life in their communities.  The challenges facing us are to maintain and improve transportation systems serving Indian lands and Alaska Native villages in order to provide safe and efficient transportation options for residents and access for visitor enjoyment, while at the same time protecting environmentally sensitive lands and cultural resources.  SAFETEA-LU provided tools and resources to improve tribal transportation and the Department is actively implementing these provisions.  We are committed to building more effective day-to-day working relationships with Indian Tribes, reflecting respect for the rights of self-government and self-determination based on principles of tribal sovereignty. 

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

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