WASHINGTON, D.C. - While the BIA and tribes agree a legal loophole must be removed which has withheld nearly $91 million from tribes for the construction and maintenance of roads on Indian reservations, they disagree over proposed technical corrections that give tribes greater self-determination in the administration of those funds.
The debate emerged following the formation of a federal-tribal negotiated rulemaking committee and introduction of a bill in Congress. The federal-tribal committee was formed in 1999 by the Secretary of the Interior to begin developing program procedures and a funding formula for the Indian Reservation Roads (IRR) Program.
The committee comprises 29 tribal representatives and 13 representatives of the federal government. The legislation, S. 2283, the "Indian Tribal Surface Transportation Act of 2000," was introduced by Sen. Ben Nighthorse Campbell, R-Colo., chairman of the Senate Select Committee on Indian Affairs, to address funding limitations and provide technical changes in management of the IRR program.
"The department can and does support providing 100 percent obligation limitation to the IRR program," said Kevin Gover, assistant secretary for Indian affairs. "However, the department does not support the provision that would make the program mandatory and we do not support the three provisions of S. 2283 that would limit the ability of the BIA to adequately meet its responsibility for the proper management, design and construction of Indian reservation roads."
The Department of Transportation notes that Indian reservation roads make up almost 3 percent of all existing roads on the federal-aid highway system. Yet, these roads have historically received less than 1 percent of the aid under transportation funding initiatives.
Nearly three years ago, during transportation legislation reauthorization, known as the Transportation Equity Act of the 21st Century, or TEA-21, tribal governments pressed Congress to increase funding for Indian roads and bridges. In the end, tribes failed to receive what was necessary to address the poor road conditions on Indian reservations.
While Indian country received some important increases under the law, a new cut was imposed on the IRR program. TEA-21 for the first time extended the "obligation limitation" to the Indian roads allocation, resulting in a loss of about $25 million of the $225 million tribes were promised for FY98, and about $32 million of the $275 million they were promised in FY99, and a projected $34 million in FY2000.
Under the obligation limitation, the Federal Highway Administration is required by TEA-21 to withhold a certain percentage of the total IRR obligation authority at the beginning of each fiscal year to be redistributed near the end of that fiscal year to recipients with projects immediately ready for funding. However, in expanding the obligation authority withholding provision to the Indian roads allocation, TEA-21 failed to expand the redistribution authority to include Indian tribes. As a result, tribes are barred from sharing in the year end redistribution and the money diverted to states.
Tribes have continuously expressed support for full funding of the IRR program, but sought changes to current law to provide a stronger voice in the administration of construction and maintenance funds under the program. The measure addresses funding inequities by lifting the obligation. It also responds to tribal requests for technical corrections to TEA-21 limiting BIA administrative costs, authorizing tribes to obtain independent review of health and safety provisions in road construction, and language establishing a tribal self-governance pilot program under Transportation which would be administered under the Indian Self-Determination and Education Assistance Act.
"When TEA-21 was passed, Congress made it absolutely clear that there is nothing special or different about the IRR program that would suggest that tribes cannot be trusted to act prudently when building or maintaining our roads, tasks the Nation has been successfully conducting since 1994," said Pat Ragsdale, director of government services for the Cherokee Nation. "In introducing this bill, Chairman Campbell explained that for Indian communities, an efficient federal roads financing and construction system holds the key to healthier economies and higher standards of living for their members. S. 2283 furthers and strengthens Congress' historic self-determination, self-governance and tribal transportation policies. It should become law."
Debate is expected to continue as the committee continues its work and Congress examines the issue. The committee is expected to publish a "Notice of Proposed Rulemaking" by the end of the year; however, Congress is not expected to take up amendments to TEA-21, such as S.2283, anytime soon.