1. BIA PROVIDERS CONFERENCE Anchorage, Alaska November 29, 2017
OVERVIEW OF THE TRIBAL TRANSPORTATION PROGRAM, TRIBAL – STATE PROJECT OPPORTUNITIES, AND RIGHT-OF-WAY
BIA PROVIDERS CONFERENCE
Anchorage, Alaska
November 29, 2017

2. History of the Tribal Transportation Program Under Title 23
Before 1982, authorization and appropriations for roads on tribal lands owned by the United States in trust for the benefit of Indians flowed under the Department of the Interior.
1982 – Surface Transportation Assistance Act (STAA)
Created the Federal Lands Highway Program (FLHP), bringing together authorization and funding for roads on lands owned by the United States, including tribal lands of over 500 Federally-recognized tribes.
Known as the “Indian Reservation Roads Program” (IRR), projects were selected by Bureau of Indian Affairs (BIA) on a “relative need” basis, and carried out by BIA through “direct service” or by tribes under a “self-determination” contract (also known as a “638 contract”).
Authorized Funding at $75M; 1984 through 1986 at $100M

3. History of the TTP
Surface Transportation Uniform Relocation Assistance Act (STURAA)
Amended 23 USC § 140 (d) to allow Indian Employment Preference on Federal-aid Projects.
Tribal Employment Rights (TERO) as an allowable cost.
Authorized Funding through 1991 at $80M

4. History of the TTP
1991 – Intermodal Surface Transportation Efficiency Act (ISTEA)
Tribes authorized to become involved in transportation planning process.
Directed the establishment of an IRR Inventory.
Tribal Transportation Assistance Centers (TTACs) established.
Authorized Funding – 1992 at $159M; 1993 through 1997 at $191M.
1998 – Transportation Efficiency Act for the 21st Century (TEA-21).
Mandated negotiated rulemaking for new program regulations (25 CFR 170).
Authorized Funding: 1998 at $225M; 1999 – 2004 at $275M.
New IRR regulations published in July of 2004 and included:
Construction funds allocated based on a “relative need distribution formula” known as “tribal shares.” Tribes with few or no roads in the IRR inventory received little funding.
Scope of “contractible activities” expanded; BIA role begins to shift from delivering projects in the field to program management and oversight.

5. History of the TTP
2005 – Safe, Accountable, Flexible and Efficient Transportation Act – A Legacy for Users (SAFETEA- LU)
Authorized tribes to contract with FHWA in accordance with P.L
Authorized tribes to expend up to 25% of their IRR funds on maintenance.
Authorized Funding at $300M; increased incrementally until 2009 at $450M, where it remained under the SAFETEA-LU extensions through 2012.

6. History of the TTP (continued)
2012 – Moving Ahead for Progress in the 21st Century (MAP- 21)
Changed name to “Tribal Transportation Program.”
Enacted statutory funding formula to replace negotiated formula in Part 170.
New formula looked to historical data and annual population reports to determine tribal shares.
2% set-aside for safety projects.
Under 23 U.S.C. §202 (a)(9), authorizes states to transfer “any funds” to tribes (via FHWA/BIA) for construction and improvement projects with oversight by FHWA or BIA.
Authorized Funding – 2013 through 2015 at $450M.

7. The TTP Today
2015 – Fixing America’s Surface Transportation Act (FAST Act)
Established an Office of Self-Governance at US DOT, and directed negotiated rulemaking for regulations governing DOT’s self-governance program.
Authorized Funding – 2016 at $465M, rising incrementally through 2020 at $505M.
No other significant changes.

8. TIGER Grants Awarded to Tribes
TIGER I
TIGER II
TIGER III
TIGER IV
Navajo Nation
Pueblo of Laguna
Wind River – Eastern Shoshone & Northern Arapaho Tribes
Turtle Mountain Band of Chippewa Indians of North Dakota
Oglala Sioux Tribe
Seminole Tribe of Florida
Native Village
Saint Michael
Tolowa Dee-ni Nation (Smith River Rancheria)
TIGER V
TIGER VI
TIGER VII
TIGER VIII
Pueblo of Taos
Oglala Sioux Tribe
Pueblo of Laguna
Rosebud Sioux Tribe
Pyramid Lake Paiute
Hopi Tribe of Arizona
Native Village of
Point Hope
Village of Alakanuk
Three Affiliated Tribes of the Fort Berthold Reservation
Assiniboine & Sioux Tribes of the Fort Peck Reservation

10. TRIBES, LIKE STATES, ARE “PUBLIC AUTHORITIES”
Public authority. The term “public authority” means a Federal, State, county, town, or township, Indian tribe, municipal or other local government or instrumentality with authority to finance, build, operate, or maintain toll or toll-free facilities.
23 U.S.C. § 101 (a)(21)

11. Like States, Tribes Must Have a FHWA-Approved Transportation Improvement Program Before Funds Can Be Expended On A Project
Use of funds. Notwithstanding any other provision of this section, funds made available to Indian tribes for tribal transportation facilities shall be expended on projects identified in a transportation improvement program approved by the Secretary. 23 U.S.C. § 202 (b)(4)

12. The Facility Must Also Be On The National Tribal Transportation Facility Inventory
In general. The Secretary of the Interior, in cooperation with the Secretary [of Transportation], shall maintain a comprehensive national inventory of tribal transportation facilities that are eligible for assistance under the tribal transportation program. 23 U.S.C. § 202 (b)(1)(A)

13. MAP-21 Unambiguously Authorized Cooperation of States and Local Governments
MAP-21 – New section at 23 U.S.C. § 202 (a)(9)(A): “The cooperation of States, counties, or other local subdivisions may be accepted in construction and improvement.”

14. remains unchanged in the FAST Act.
MAP-21 Also Unambiguously Authorized BIA and FHWA to Transfer and Oversee Funds Received From States or Their Political Subdivisions
23 U.S.C. § 202 (a)(9)(B) provides that:
“any funds received from a State, county, or other local subdivisions shall be credited to appropriations available for the tribal transportation program.”
The entirety of § 202 (a)(9)
remains unchanged in the FAST Act.

15. Challenges For Tribes, States & Local Governments
States & local governments are usually not familiar with Chapter 2 of Title 23/TTP because their world is Chapter 1.
Tribes today are seeking a place at the table for state or other non-tribal projects on their lands, in part as a result of taking on “all but the inherently Federal functions” of the TTP under Program Agreements and other contract mechanisms.
Politics of tribal-state relationships sometimes interfere with finding effective solutions benefitting tribes, states, counties, other governments and the traveling public.

16. Funding Sources That May Be Eligible for a 202 (a)(9) Agreement
Overall - Federal-aid and other Funds
Transportation Enhancement
Surface Transportation Program
Strategic Highway Research Program
Other discretionary funds from programs authorized under Title 23, or any other funds from a state, county, or other local subdivisions.
Otherwise consistent with the mission of BIA and FHWA.

17. Potential Projects Using Federal-Aid Funds
Consistent with Chapter 1 of Title 23:
Access roads
State highways and possibly other local roads.
Interstates or interchanges
Transportation Enhancement
Active Transportation Program – bicycle, walking and other facilities or activities authorized under the ATP
Other projects on a case-by-case basis
THINK CREATIVELY!

18. BIA & FHWA Coordination
Educating states and FHWA Division offices about the new law. Finding opportunities.
After identifying opportunities, tribes, states, and BIA/FHWA must be patient but diligent in working together to reach an agreement that works for all three sovereigns.
25 CFR § requires an agreement among Tribe, State and BIA/FHWA describing source and use of funds.
A model agreement is now available. It’s short yet comprehensive and flexible.
In most cases, States are relieved of oversight responsibility upon funds transfer to FHWA or BIA. Negotiable if, for example, the project is on a state-owned facility.

19. Moving Forward
FHWA’s fiscal office, working in cooperation with its Office of Chief Counsel, has issued internal guidance for how to “move” funds under agreements using 23 USC 202 (a)(9).
This should further expedite the process for moving funds back to FHWA and on to tribes.

20. Past Successes TEA-21 & SAFETEA-LU Agua Caliente
Eastern Band of Cherokee
SAFETEA-LU & MAP-21
Red Lake – Redby Bridge Project
MAP-21
Tulalip – Interstate 5 Interchange

21. Fast Progress Under the FAST Act
Karuk Tribe & La Jolla Band of Luiseno Mission Indians – State of California; additional agreement pending in California
Red Lake & Leech Lake – State of Minnesota (including some MnDOT State Funds)
Tulalip Tribes – State of Washington
Additional agreement pending in California
Seneca Nation of Indians – State of New York
Native Village of Barrow, Craig Tribal Association & Tanana Chiefs Conference – State of Alaska, and another in process.

22. Office of the Solicitor – Division of Indian Affairs, And Office of the Chief Counsel – Federal Highway Administration Overview of Right-of-Way and the Tribal Transportation Program

23. Stakeholders and Partners
To name a few…
Beneficiaries
Tribal Nations
Land Department
Minerals Office
Real Estate Department
Department of Justice
Transportation
Individual Allotted Landowners
Other BIA Programs
Land Titles & Records Office (LTRO)
Division of Natural Resources
Other Government
Office of Special Trustee for American Indians
Fiduciary Trust Officers
Individual Indian Monies
Office of Appraisal Services
Office of Historical Trust Accounting
Office of Trust Records
Indian Land Consolidation Office
Indian Health Service
Bureau of Land Management
Bureau of Reclamation
Minerals Management Service
Office of Surface Mining
Office of the Solicitor
Housing & Urban Development
Other
Tribal enterprises
Tribal Utility entities
TDHE
Oil & Gas industry
Financial Lenders (Mortgages)
State & Local Governments
Municipalities
State & County Transportation
Many others
Various ROW
Roads
Bridges
Oil & gas lines
Water canals
Electric lines
Utility lines
Etc.

24. Federal Statutes Governing Right-of-Ways on Tribal Lands
25 U.S.C. § 323 Rights-of-way for all purposes across any Indian lands “The Secretary of the Interior be, and he is hereby, empowered to grant rights-of-way for all purposes, subject to such conditions as he may prescribe, over and across any lands now or hereafter held in trust by the United States for individual Indians or Indian tribes, communities, bands, or nations, or any lands now or hereafter owned, subject to restrictions against alienation, by individual Indians or Indian tribes, communities, bands, or nations, including the lands belonging to the Pueblo Indians in New Mexico, and any other lands heretofore or hereafter acquired, or set aside for the use and benefit of the Indians.”

25. Federal Statutes Governing Right-of-Ways on Tribal Lands
25 U.S.C. § 324 Consent of certain tribes; consent of individual Indians - No grant of a right-of-way over and across any lands belonging to a tribe shall be made without the consent of the proper tribal officials. Rights-of-way over and across lands of individual Indians may be granted without the consent of the individual Indian owners if (1) the land is owned by more than one person, and the owners or owner of a majority of the interests therein consent to the grant; (2) the whereabouts of the owner of the land or an interest therein are unknown, and the owners or owner of any interests therein whose whereabouts are known, or a majority thereof, consent to the grant; (3) the heirs or devisees of a deceased owner of the land or an interest therein have not been determined, and the Secretary of the Interior finds that the grant will cause no substantial injury to the land or any owner thereof; or (4) the owners of interests in the land are so numerous that the Secretary finds it would be impracticable to obtain their consent, and also finds that the grant will cause no substantial injury to the land or any owner thereof.

26. Federal Statutes Governing Right-of-Ways on Tribal Lands
25 U.S.C. § 325 Payment and disposition of compensation No grant of a right-of-way shall be made without the payment of such compensation as the Secretary of the Interior shall determine to be just. The compensation received on behalf of the Indian owners shall be disposed of under rules and regulations to be prescribed by the Secretary of the Interior.

27. Federal Statutes Governing Right-of-Ways on Tribal Lands
25 U.S.C. § 327 Application for grant by department or agency Rights-of-way for the use of the United States may be granted under this Act upon application by the department or agency having jurisdiction over the activity for which the right-of-way is to be used.

28. Tribal Transportation Program Definition of BIA System Road
Definitions for the terms found in Part 170 are located at 25 C.F.R. § The “BIA Road System” means “the Bureau of Indian Affairs Road System under the NTTFI [National Tribal Transportation Facility Inventory] and includes only those existing and proposed facilities for which the BIA has or plans to obtain legal right-of-way.”

29. TTP & Maintenance Activities
23 U.S.C. § 202 (a)(8)
Maintenance.
(A)  Use of funds. Notwithstanding any other provision of this title of the amount of funds allocated to an Indian tribe from the tribal transportation program, for the purpose of maintenance (excluding road sealing, which shall not be subject to any limitation), the Secretary shall not use an amount more than the greater of--
(i)  an amount equal to 25 percent; or
(ii)  $ 500,000.

30. Definition of “Maintenance”
Federal law at 23 U.S.C. § 101 (a)(13) defines “Maintenance” as meaning “the preservation of the entire highway, including surface, shoulders, roadsides, structures, and such traffic-control devices as are necessary for safe and efficient utilization of the highway.”
The TTP regulations adopted this definition, and Maintenance using TTP funds is addressed in 25 C.F.R. Part 170, Subpart G, §§ to
A list of eligible maintenance activities using TTP funds can be found in the Appendix Subpart G.

31. TTP Projects & Categorical Exclusions
The recent updates to the TTP regulations specifically addressed Categorical Exclusions: 25 C.F.R. § Do the Categorical Exclusions under the National Environmental Policy Act (NEPA) and the regulations at 23 CFR 771 apply to TTP activities? Yes. Regardless of whether BIA or FHWA is responsible for the oversight of a Tribe’s TTP activities, the Categorical Exclusions under NEPA at 23 CFR governing the use of funds made available through title 23 shall apply to all qualifying TTP projects involving the construction or maintenance of roads. NOTE: This provision applies only to actual construction or maintenance of roads using TTP funds, not to the review and approval of a right-of-way by BIA Realty.

32. Crosswalk Part170 & 169 ROW
Part 170 (Inventory) Part 169 BIA System Roads YES Tribal Road System (100% Tribally Owned Lands; No other interests involved) NO Roads Owned by Others (Federal agencies, states and their political subdivisions) YES

33. 25 CFR 169.4
Do I need a BIA-approved ROW to authorize possession over or across Indian Land?
Tribally-owned roads: NO
A tribal ROW to a wholly owned tribal entity can be authorized by a tribal resolution without BIA approval.
Legal description
Purpose
Conditions and Terms
BIA-owned roads: YES
A body such as another Federal, State or local governmental entity who does not own trust land, must obtain a ROW from the BIA with the consent of the majority interest trust landowners including the tribe if the tribe is a beneficial trust landowner of land.
25 CFR 169 in comparison to 25 CFR 170

34. Guidance & Checklists 25 CFR 169.127
Is a new right-of-way required for a new use within or overlapping an existing right- of-way?
Yes, normally a new ROW is required
Is the scope covered in the original grant?
Will there be ground disturbance?

35. Guidance & Checklists-25 CFR 169
Standardized Checklists
Uniform Procedures
Preliminary Documents review
ROW application package
Decision
Post Decision
25 CFR 169 in comparison to 25 CFR 170

36. ROW Handbook- 25 CFR 169 ROW Handbook Procedural ROW Steps.
Includes templates, checklist and guidance material.

37. Guidance & Checklists-25 CFR 169.103
What bonds, insurance, or other security must accompany the application?
Bond waiver – Under consideration by Acting Assistant Secretary.
Insurance - Final Rule has new requirements for bonds, insurance, or other security to cover:
Highest annual rental specified in the grant (unless a one-time payment).
Estimated construction damages.
Estimated damages and remediation costs from release of hazardous wastes, explosives, etc.
Operation and maintenance charges for land within an irrigation project.
Restoration of premises to initial condition or condition specified in grant.
25 CFR 169 in comparison to 25 CFR 170

38. Templates-25 CFR 169 Templates for Processes Reply Letter
Application for Grant of Easement for ROW
Applicants Letter of Intent
BIA Revocable Access
Survey requirements
Consent of Owner to grant a ROW
Consent of Owner for renewal/ amendment/ assignment/mortgage
Permit- Permission to Encroach on ROW
Grant of Easement sample
25 CFR 169 in comparison to 25 CFR 170

39. TAAMS & 25 CFR 169
TAAMS – Trust Asset and Accounting Management System, including BIA’s Land Records.
Enhancements will be made to TAAMS to reflect recently updated 25 C.F.R. Part 169.
Tracking ROW applications received.
25 CFR 169 in comparison to 25 CFR 170

40. Division of Land Titles and Records
The Land Titles and Records Office (LTRO) is the “Office of Record” for all Land Title Documents for Indian Trust and Restricted Lands -Delegated authority– 25 CFR 150
Charged with the Federal responsibility to record, provide custody, and maintain records that affect titles to Indian lands, to examine titles and to provide title status reports for such land.
RESPONSIBLE FOR TITLE TO THE LARGEST TRUST IN THE WORLD
The mission of the LTRO program is to maintain timely and certified Federal title, encumbrance and ownership services and to provide land title services that are accurate, accountable, and efficient, and include complete title ownership and encumbrance for all Federal Indian trust and restricted lands.
The DLTR ensures that the DOI is meeting its mission of maintaining a complete record of Indian trust assets and ownership. Keeping title current provides reasonable assurance that the federal government is: 1) distributing trust income timely and accurately 2) issuing statements of title status that are timely, accurate and complete 3) maintaining accurate boundaries for managing trust land and resources within the jurisdiction of the agency.
Operation and maintenance costs for 9 federal and 7 tribal title offices and the oversight of one agency with title service responsibilities.
The DLTR has Indian landowner and Title responsibility for the largest land Trust in the world, with over 10 million acres belonging to individual Indians and 46 million acres held in trust or restricted status for Indian Tribes.
LTROs record tens of thousands of conveyance documents annually, including processing Office of Hearing and Appeals (OHA) Probate’s and modifications affecting title to all trust and restricted Indian land. Title includes recordation and title management for encumbrances associated with road rights of ways, leases managed on these lands for uses such as housing, farming, grazing, forestry, and oil and gas production on behalf of individual Indians and Tribes.

41. Contact Information
Vivian A. Philbin Office of the Chief Counsel – Federal Lands Highway United States Department of Transportation Direct Line (720) Andrew S. Caulum Office of the Solicitor – Division of Indian Affairs United States Department of the Interior Direct Line (202)

42. QUESTIONS?