Secretary of Transportation Elaine Chao addresses the executive council winter session of the National Congress of American Indians in Washington, D.C., on February 13, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Senate Committee on Indian Affairs sets hearing on reservation roads

The Senate Committee on Indian Affairs is exercising oversight in a tricky area of federal policy where tribes have clashed with the Trump administration.

Tribes have been working for years to exercise greater control over roads, bridges and related infrastructure in their communities. To carry out that goal, the Fixing America’s Surface Transportation Act of 2015, also known as the FAST Act, requires the Department of Transportation to establish a self-governance program.

But developing the regulations for the program -- the first outside of the Department of Health and Human Service and the Department of the Interior -- hasn't been easy. Tribal leaders participated in the first four meetings for the self-governance rule in 2016 only to see the new Trump administration suspend the effort in early 2017.

According to tribal leaders who serve on the negotiated rule-making committee for the Tribal Transportation Self-Governance Program, the administration made a "unilateral decision" to review the effort, which resulted in no progress being made "for the entirety of 2017."

Documents show the committee indeed didn't meet at all in 2017, an impasse that prompted the National Congress of American Indians to pass a resolution calling for work to continue.

In December of that year, the department finally called the committee back to order, explaining in a notice published in the Federal Register that its work had been "put on hold in January 2017 to allow the new administration to be briefed on the rulemaking and determine its future direction."

Not only did the rule not reflect their input, tribal leaders said they were told that it was going to be published the following month whether they liked it or not.

"Department officials are under the mistaken impression the negotiated rulemaking process is working," tribal leaders wrote in a strongly-worded letter to Secretary of Transportation Elaine Chao. "It is not. It is broken."

"The department's revised draft rule, stances and abbreviated timelines have made it clear to us that there is no path forward to reach a consensus rule via a good faith, negotiated rulemaking process as mandated by the statue," the 11 tribal leaders wrote on June 19, 2018. "As a result, we reject any effort by the department to portray any proposed draft rule or final rule as one with tribal approval, with substantive tribal participation, or one that meets the department's obligations to consult with tribes, negotiate with tribes, or to uphold the federal-tribal trust responsibility."

The leaders further stated that they "reject and do not approve" any of the minutes from the two meetings held earlier that year because they "do not accurately reflect the tribal committee members' statements or those made by other non-federal officials participating in the negotiations."

But before the Trump administration could made another "unilateral decision" and publish the disputed self-governance regulation, Congress intervened and enacted H.R.6414 later that summer. The new law gives tribes and the department more time to complete the rule-making process.

"This bill to provide an extension of the current deadline, demonstrates that Congress supports ongoing discussion among the parties, not a one-sided approach," Rep. Peter DeFazio (D-Oregon), who was the sponsor of the legislation, said at the time.

Despite the disagreement, Secretary Chao was all smiles when she spoke at NCAI's winter session in Washington, D.C., last month. She diplomatically acknowledged tribal dissatisfaction by saying "it's not an easy process" as she insisted that a rule for the self-governance program would be completed "by the end of this year, December 2019."

"The department's self-governance program will recognize the unique government-to-government relationship between the tribes and the United States," Chao said on February 13.

"The goal is to improve the way that the department does business with the tribes," Chao added.

Whether that is still the case will be aired at a hearing in D.C. on Wednesday. The Senate Committee on Indian Affairs has invited an official from the department to testify, as well as Joe Garcia, a former two-term president of NCAI and council member from Ohkay Owingeh who has served as co-chair of the rocky rulemaking body.

The hearing takes place at 2pm Eastern in Room 628 of the Senate Dirksen Office Building. The full witness list follows:
Associate Administrator for Federal Lands
Federal Highway Administration
U.S. Department of Transportation
Washington, DC

Chief, Division of Transportation
Bureau of Indian Affairs
U.S. Department of the Interior
Washington, DC

Gila River Indian Community
Sacaton, AZ

Head Councilman
Ohkay Owingeh Pueblo Council
Ohkay Owingeh, NM

Senate Committee on Indian Affairs Notice
“Enhancing Tribal Self-Governance and Safety of Indian Roads" (April 3, 2019)

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