The Road to Happiness Starts With Better Roads

The poor state of roads and bridges in Indian country is well-documented, and all too familiar to tribal citizens who face impassable roads during storms, rough dirt roads that are the only routes to take children to school, and bridges that may only be accessible seasonally. The lack of road safety features result in crash injuries and death more often in Indian Country than anywhere else in the United States. Decrepit infrastructure has hindered economic development and stifled job growth in many tribal communities.

On April 29, U.S. Transportation Secretary Anthony Foxx put forward the Obama Administration’s transportation bill, “Grow America Act,” which has the construction industry, labor leaders and transportation policy advocates praising the effort to stimulate congressional action on needed investment in the nation’s deteriorating road, bridge, and rail networks. The proposal reflects some of Indian Country’s transportation needs, but falls short of the commitment required to reduce the historical funding inequities that have left many tribal roads systems stuck in the mud. Moreover, the viability of the Obama Administration’s proposal depends upon Congress adopting tax reform measures that generate new revenue to shore up the depleted Highway Trust Fund — a big presumption given partisan gridlock in Washington.

Most Indian tribes operate their own transportation departments with funding received through the Highway Trust Fund, and these tribal transportation programs are crucial to providing safe and reliable roads, bridges and transit services. The effectiveness of such programs is essential to stimulating commerce, job creation and economic development in Indian Country.

Representatives from Indian country have been working to build momentum for tribal transportation legislation that boosts funding and further empowers tribes to transform dangerous and deficient roads and bridges into transportation networks that can safely provide tribal citizens better access to services, resources and commerce.

The National Congress of American Indians (NCAI), the Intertribal Transportation Association and the newly-formed Tribal Transportation Unity Caucus have linked tribes and tribal organizations in an effort to develop and promote the “Tribal Transportation Unity Act,” a proposal for comprehensive tribal transportation legislation. This tribal coalition presented their proposal to key transportation and infrastructure committees in the Congress the week before Secretary Foxx delivered his.

The Tribal Unity proposal urges the United States to deepen its commitment to infrastructure investment and transportation services in Indian Country through substantial funding increases as well as terms that provide tribal governments greater authority to plan, construct and operate transportation programs to meet tribal needs. The Obama Administration’s “Grow America Act” reflects some of these priorities, but fails to contemplate the level of investment or the breadth of tribal authority contained in the Tribal Unity Act legislation.

The most significant challenge facing tribes is the lack of adequate funding to meet the overwhelming and documented need. This Congress has objected to increasing investment in transportation when revenues from its sole funding source—the federal gas tax—are declining.

Meanwhile, the Obama Administration ties its $302 billion transportation proposal to tax reforms that have yet to materialize. Even with this yet unproven source of revenue, the Grow America Act proposes only $507 million for the Tribal Transportation Program in FY 2015, which is notably less than the $600 million proposal the President put forward two years ago. While the proposed funding levels will increase to $538 million by FY 2018, they do not represent a transformative increase over the current level of $450 million that has been held in place since 2009. Staff for the Senate Environment and Public Works Committee, chaired by Senator Barbara Boxer (D-CA), recently indicated to NCAI that the Committee does not plan to entertain any new funding for the Tribal Transportation Program.

This legislative cycle does offer tribes more favorable prospects with respect to expanding their authority and self-determination in administering and operating transportation programs. In the last highway authorization, the Transportation and Infrastructure Committee in the House of Representatives adopted a series of provisions to increase tribal control and oversight of transportation programs, including a Tribal Self-Governance Program for tribes to assume any transportation program offered by the U.S. Department of Transportation (DOT) under one compact.

The DOT Self-Governance Program is part of the Tribal Transportation Unity Act proposal and is designed to empower tribes to maximize the advantages of other transportation grants and program opportunities.

The DOT Self-Governance Program legislation enjoyed bipartisan support in the House Transportation and Infrastructure Committee. Committee Ranking Member Nick Rahall (D-WV), who offered the proposal during the last highway authorization, is committed to working with Committee Chairman Shuster (R-PA) to adopt it once again. The provision is among several Tribal Unity proposals that Congress can adopt without requiring additional funding. Senate Environment and Public Works Committee staff members have indicated interest in bringing such “no-cost” tribal provisions forward.

The Obama Administration, states and the transportation and construction industries are urging Congress to act immediately to stop the impending collapse of the Highway Trust Fund. Questions remain as to whether this approach will produce a new surface transportation bill or simply a short term patch that sustains the Highway Trust Fund through the summer construction season. Regardless of approach, what is certain is that the next few weeks will offer vital opportunities for innovative tribal transportation proposals to be considered by the Congress.

Michael Willis is a partner in the Washington, DC office of Hobbs Straus Dean & Walker LLP. He focuses on tribal transportation and tribal tax policy. He can be reached at mwillis@hobbsstraus.com.

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The Road to Happiness Starts With Better Roads

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