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October 4, 2019 1:45 PM, EDT

DOT Proposes Transportation Self-Governance Program for Tribes

Road building on tribal land Bureau of Indian Affairs/Department of the Interior

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The U.S. Department of Transportation has issued a proposal to create a Tribal Transportation Self-Governance Program.

The Notice of Proposed Rulemaking, published in the Federal Register on Oct. 2, resulted from negotiations between representatives of the tribes, DOT and the Department of the Interior.

Tribal Transportation 2019 ... by Transport Topics on Scribd

The Tribal Transportation Self-Governance Program would give participating tribes more authority over the DOT funding that they are eligible to receive.

The purpose of the proposed program is to smooth cooperation between DOT and tribal governments and facilitate tribal control over the delivery of transportation activities.

“I am pleased that the Department of Transportation and Indian tribes have agreed on the proposed rule concerning the Tribal Transportation Self-Governance Program,” said Sen. John Hoeven (R-N.D.), chairman of the Senate Committee on Indian Affairs. “Now, Indian tribes will have the opportunity to improve their highways and bridges.”

John Hoeven

Hoeven

The program would authorize tribes to plan, redesign and administer transportation projects to meet the needs of their communities.

The Federal Register document notes that the proposed program would also reduce administrative burdens.

“The Tribal Transportation Self-Governance Program will strengthen transportation infrastructure and reduce administrative red tape for tribes receiving funding from the department,” said Transportation Secretary Elaine Chao.

In order to participate, a tribal government entity must demonstrate fiscal stability and transportation program management capability. Through the program, DOT and a tribe would establish a written funding agreement that allows the tribe to plan and conduct programs that DOT would otherwise administer. The tribe would be allowed to redesign certain programs or reallocate funds to best meet the needs of its constituents.

According to the Federal Register notice, tribes may suspend performance under a funding agreement in the absence of funding or retrocede all or a portion of the programs included in the agreement.

The program would also set up procedures that a tribe may use to resolve disputes with the federal government about compacts and funding agreements.

The negotiated rulemaking committee, created in 2016 with federal and tribal representatives, still has not reached consensus on some issues. For example, disagreements remain on whether to establish an Office of Self-Governance within DOT and create a Self-Governance Advisory Committee, the applicability of contract support costs and whether DOT may require a tribe to exhaust administrative remedies for pre-award decisions before filing suit in federal court.

DOT is accepting written comments on this proposal through Dec. 2. The agency will hold four public meetings during the comment period to answer questions and gather feedback about the proposed rule. Three of the meetings will be on or near tribal land in New Mexico, Mississippi and Washington. The fourth meeting will be held through a webinar.

“Implementation of the [program] through this rule would maintain and improve the federal government’s unique and continuing relationship with and responsibility to tribes, without a diminishment in any way of the trust responsibility of the United States to Indian tribes and individual Indians that exists under treaties, executive orders or other laws and court decisions,” the Federal Register document states.

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