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Public Roads - November/December 2015

November/December 2015
Issue No:
Vol. 79 No. 3
Publication Number:
Table of Contents

A New Era Is Dawning

by Kyle Kitchel

A member of the Osage Nation and 17-year veteran in the Tribal Transportation Program looks back at the history of road building on reservations—and forward at today’s tribal DOTs.

This tribal road construction crew is replacing a bridge on the Flathead Reservation in Montana. The department of transportation of the Confederated Salish & Kootenai Tribes employs an engineer, a planner, technicians, a construction supervisor, and a road maintenance supervisor.

The following question emerged 2 years ago at the Office of Federal Lands Highway and the Bureau of Indian Affairs: “How long has the Federal Highway Administration been working in Indian Country?” The reason for this question stems from the growing interaction among FHWA, tribal governments, the Tribal Transportation Program, and the Federal-Aid Highway Program’s division offices. According to the 2013 audit by the Office of Inspector General, “One of the changes Congress has made to FHWA’s role in the program is that tribes now have the option to carry out their transportation program directly through FHWA. The number of tribes opting to work directly with FHWA has increased from the initial 3 in 2006, to the current number of 117 tribes.” As of September 2015, that number had grown to 130.

With roots back in roadway legislation enacted in the early 1900s and evolving out of more recent legislation, tribal public authorities have emerged across the country and are developing into full-fledged departments of transportation. These tribal DOTs are working to improve the transportation infrastructure in Indian Country.

In Montana, for example, Dan Lozar, P.E., manager of the Division of Water of the Natural Resources Department of the Confederated Salish & Kootenai Tribes, says, “We are forced to contend with ever-increasing construction and maintenance costs while funding levels remain stagnant. A successful marriage between planning and engineering allows for our continued success despite this difficult situation.”

He adds, “Transportation is truly a communal need. It’s tough to find a more fundamental right than safe and efficient transportation on the reservation. We constantly think outside the box to make our projects go further, but a vast and aging infrastructure will forever keep us clawing uphill.”

In other words, the tribal DOTs are facing the same financial challenges and constraints as State DOTs. Over the years, they have been addressing those challenges, and others.

Early Road Building On Reservations

Examples of road building can be found in treaties between Indian nations and the Federal Government. For example, the second article of the Treaty of Fort Laramie with Sioux, Etc., signed on September 17, 1851, reads, “The aforesaid nations do hereby recognize the right of the United States Government toestablish roads, military and other posts, within their respective territories.”

Another example is the third article in the treaty with the Yakima (now known as the Yakama Nation) in 1855: “And provided, that, if necessary for the public convenience, roads may be run through the said reservation; and on the other hand, the right of way, with free access from the same to the nearest public highway, is secured to them; as also the right, in common with citizens of the United States, to travel upon all public highways.”

When the treaty era ended around 1900, reservation boundaries determined the locations of many Native American communities, and their previous way of life came to an end. A workforce-model society more reminiscent of Western civilization replaced the nomadic life of many tribes or other traditional ways of life. Governmental policies administered goods and services through Indian agents hired by the Federal Government for reservations and other areas of Indian Country.

A Federal law passed March 3, 1875, required that all able-bodied Indians between the ages of 18 and 45 had to labor for the benefit of themselves or the tribe in order to be entitled to rations. In 1885, U.S. Indian Agent R.H. Milroy reported from the Washington Territory: “I had the board to lay off the reservation into seven road districts, and to appoint a road supervisor in each, whom I instructed in their duties in relation to warning out the able-bodied men of their districts, opening and constructing roads and bridges, keeping the same in repair.”

Road, river, and train transportation all figured in the 1900 report of the Commissioner of Indian Affairs: “All agency and school supplies, formerly brought in by steamboats, are now transported from [the town of] Needles, [CA], in large rowboats by the Indians. They also transport many tons of freight for mines along the river. A large number have worked in mines the past year, and in cutting wood and making roads for mines. The prospect for an increase of such work is good. A number are working for the Santa Fe Railroad Company, and a few on ranches. For the first time a number are earning good wages carrying mails. Practically all this outside work has been secured for them through the efforts of the agent and agency employees.”

This historical photo shows Indians working on the Milk River Project, the road to Sherburne Reservation in Montana circa 1903.

Project, the road to Sherburne Reservation in Montana circa 1903.

Any idea that some observers today might harbor to the effect that the Federal Government provided the necessities of life to the Indian people without their participation is erroneous. The laborers who built the homes and schools, farmed the land, and harvested the crops on reservations were a tribal workforce.

In addition, through various forms of government programs, Native Americans developed labor skills that enabled them to work off the reservation in mainstream U.S. society and to be assimilated into the workforce of Western society. Through those government programs, Indian road construction crews also began to emerge.

During this early period, the U.S. Government considered tribal citizens to be members of an aboriginal people, not members of a tribal government. The idea was to assimilate the individual Indian into becoming a U.S. citizen, not as a member of a tribal government that could manage a transportation project. This approach resulted in tribal citizens being allowed to participate in the transportation process as laborers, but not as decisionmakers or as administrators.

This would take time to change.

The Confederated Salish & Kootenai Tribes constructed this road improvement project to access home sites on the Flathead Reservation.

The Transfer Legislation

During the early years of road building on reservations, the Federal Government supplemented the financial costs. According to FHWA’s unofficial historian Richard F. Weingroff, the Federal Highway Act of November 9, 1921, rejected the view of long-distance road advocates who wanted the Federal Government to build a national highway network. Weingroff wrote, “To satisfy them, the act limited Federal aid to a system of Federal-aid highways, not to exceed 7 percent of all roads in the State.”

Also included in this act under section 3 was the following: “The Secretary of Agriculture is authorized to cooperate with the State highway departments, and with the Department of the Interior in the construction of public highways within Indian reservations, and to pay the amount assumed therefore from the funds allotted or apportioned under this Act to the State wherein the reservation is located.”

This 1921 legislation, as interpreted by the U.S. Comptroller General, spurred road work on Indian reservations with the Federal Government picking up the tab. Following this legislation, the Bureau of Indian Affairs approved access to these projects for approximately 25 reservations.

Road building requires a large investment of funds, and with the Federal Government paying for 100 percent of the cost on Indian lands, it did not take long for State governments to realize that building roads on reservations was less expensive than constructing State routes bypassing the reservations.

With this 1921 mandate for funding projects, Indian laborers continued to develop their skills in road construction and would further their opportunities during the Great Depression when the Civilian Conservation Corps was created to put U.S. citizens back to work.

At the time, John Collier was the Commissioner of Indian Affairs. He petitioned on behalf of Native Americans to form a Civilian Conservation Corps for Indian Country. It was called the Indian Emergency Conservation Work. This corps called for an educational element that would provide management and leadership courses for Native Americans. As the program was implemented, however, the educational aspect was overlooked, and the greater focus was placed on completing projects with speed and efficiency.

Indian Reservation Roads Program

In 1928 the Indian Reservation Roads Program was established authorizing the Secretary of Agriculture to cooperate with State highway agencies and the Department of the Interior to survey, construct, reconstruct, and maintain Indian reservation roads serving Indian lands. The relationship would last until the Federal Lands Highway program developed in 1982 under the Surface Transportation Assistance Act. During these times, road building was administered under memorandums of agreement that developed Federal policies between the Bureau of Indian Affairs, Bureau of Public Roads, and then eventually with FHWA.

In 1974--1 year before passage of P.L. 93-638 Indian Self-Determination and Education Assistance Act, the memorandum of agreement between FHWA and the Bureau of Indian Affairs allowed tribal leaders at the decisionmaking table as peripheral negotiators. Prior to 1974, the district engineer with the Bureau of Indian Affairs made the decisions and then submitted them to FHWA for approval.

The Transportation Equity Act for the 21st Century (TEA-21), enacted in 1998, represented the next important step in increasing the responsibility of the tribes. TEA-21 allowed tribal governments to become public transportation authorities. TEA-21 modified the Indian Reservation Roads Program to permit tribal governments to assume responsibility for implementing transportation programs on reservations using Federal Highway Trust Funds. Eventually, transportation departments overseen by the tribal governments began to develop out of that program.

The rulemaking for this and other provisions of TEA-21 was completed in June 2004. This new responsibility birthed the tribal DOTs that administer the development of transportation systems in Indian Country today.

The Emerging Tribal DOTs

Through the leadership of tribal governments, public authorities have focused on fostering and employing transportation professionals within their various ranks, and establishing DOTs that can deliver a quality product. Tribal DOTs range from a single individual on some reservations up to fully functioning transportation departments similar to State DOTs on others.

These force account workers representing the Association of Village Council Presidents pose in front of the equipment they are using to construct a project on tribal land.

Through self-determination and self-governance, tribes have assumed responsibility for delivering the Tribal Transportation Program (TTP), formerly known as the Indian Reservation Roads Program. Under the TTP, tribes may elect to administer the program through several forms of agreements with the Bureau of Indian Affairs or FHWA’s Office of Federal Lands Highway. The agreements allow the tribal governments to administer the program under their policies and procedures and in accordance with Federal regulation 25CFR170.

To date, almost every federally recognized tribe participates in administering the TTP in transportation planning and/or construction. This opportunity has enabled tribal DOTs to grow in professionalism and fill jobs that Federal employees once held. The new era of tribal transportation administration is developing quickly.

Moreover, additional changes are occurring nationally. The Transportation Research Board has a full standing committee called the Native American Transportation Issues Committee. In addition, the National Congress of American Indians has a transportation committee, and there is also an Intertribal Transportation Association. These organizations are just a sample of what has developed in a short time, not to mention local and regional organizations throughout the United States.

Standards for Tribal DOT Projects

If a tribal DOT receives Federal funding for a transportation project, the tribe is required to follow Federal regulations similar to those that govern the Federal-Aid Highway Program that States adhere to. But they must also follow any tribal laws that apply.

Every tribal DOT administering the TTP must develop a long-range transportation plan and a Tribal Transportation Improvement Plan (TTIP). This plan is restricted to projects that are financially constrained (that is, ones with funds that are reasonably available to be programmed into a TIP to complete the project) and are on the National Tribal Transportation Facilities Inventory, which is managed by the Bureau of Indian Affairs. FHWA’s Office of Federal Lands Highway also must approve the TTIP.

Prior to construction, tribal DOTs must have the project’s plans, specifications, and estimates (PS&E) stamped (approved) by a professional engineer who is registered in the State where the project will take place. The tribe is the approving public authority for the PS&E package. The package consists of stamped design, permitting, rights-of-way, and environmental documentation, along with any FHWA-approved design changes.

Tribes also must adhere to any additional permits or requirements that might not be included in a State transportation department’s PS&E package, but are included in their own laws that govern the area where they have jurisdiction, even when the land is held in trust by the Federal Government. Some of these laws pertain to the environment, land, and infrastructure. For instance, some tribal governments manage fisheries that depend on water quality for their viability. During the development of road projects that are adjacent to bodies of water, the tribal DOT might be required to obtain permits necessitated by tribal laws that deal with fisheries or water quality, in addition to complying with the Federal laws.

The tribal DOT will advertise the projects according to tribal policies and procedures, as well as any Federal requirements. Once the contract is awarded, the tribal DOT manages the project in accordance with its quality assurance and quality control measures. A representative of FHWA or the Bureau of Indian Affairs then makes routine visits to the jobsite to provide assistance, stewardship, and oversight of program funds.

Spotlights on Tribal DOTs

The following are examples of tribal DOTs in action:

Confederated Salish & Kootenai Tribes. Located in northwest Montana, the Flathead Reservation comprises 1.3 million acres (526,000 hectares) with a transportation network of approximately 1,800 miles (2,897 kilometers). Depending on the location, ownership of the roads ranges from county to tribal, State, and Federal authorities.

The roads program is housed in the tribe’s Natural Resource Department--Division of Water. A licensed professional civil engineer manages not only road construction, but also the department’s other civil engineering duties. The transportation engineering staff consists of a road engineer, a professional planner, civil engineering technicians (American Concrete Institute certified), a construction supervisor, and a road maintenance supervisor, along with force account crews, who are direct employees of the tribal government. Projects can range from work on local streets and bridges to partnerships working on State highways.

The tribe has a tribal college that offers training and education for equipment operators. The tribal DOT employs some of the graduates during the summers and often allows the college to use small-scale projects as training opportunities for the students.

These workers with the Association of Village Council Presidents are constructing an old boardwalk at Kongiganak, a coastal Alaskan village.

Association of Village Council Presidents. Located in Bethel, AK, the villages in this remote and isolated region encompassing 57,826 square miles (149,769 square kilometers) are accessible only by small plane or boat. Internal circulation routes and access to subsistence activities are what drive the transportation needs in the villages.

The tribal DOT of the Association of Village Council Presidents addresses those needs. The association established the DOT in 2008 when its 15 federally recognized member tribes united to address the lack of infrastructure, as well as unforeseen project needs in their villages. The department focuses on creating jobs, improving the quality of life of tribal members, and lowering energy costs in the region. It constructs all of its projects using a force account construction model to maximize economic benefits to the local economies.

What’s Ahead?

To compete in a 21st-century transportation environment, tribal DOTs have had to adapt and learn a great deal in a limited time. They have gained the respect and admiration of the transportation community as it has witnessed their growth in self-determination and self-governance.

“The more than 565 federally recognized tribes are explicitly acknowledged as public authorities in 23 U.S.C. 101,” says Robert W. Sparrow, director of the Tribal Transportation Program in FHWA’s Office of Federal Lands Highway.

Gaining recognition as DOTs is an ongoing process that requires State and local DOTs to acknowledge that the tribal DOTs are full-fledged public authorities that have taken on the responsibility of sovereign nations for their own transportation systems.

Kyle Kitchel is the lead transportation specialist assisting the TTP. Based in FHWA’s Office of Federal Lands Highway in Vancouver, WA, he is a member of the Osage Nation and has been working with the TTP for 17 years. He holds a B.A. in urban and regional planning from Eastern Washington University.

For more information, contact Kyle Kitchel at 360–619–7951 or