By Matt Slovin
The Infrastructure Investment and Jobs Act (IIJA), which President Joe Biden signed into law on November 15, authorizes approximately $3 billion in spending for the tribal transportation program over the next five fiscal years.
Under the pre-existing tribal transportation program, the federal government maintains a “comprehensive national inventory of tribal transportation facilities that are eligible for assistance.” 23 U.S.C. § 202(b)(1)(A). The program’s purpose is “to provide safe and adequate transportation and public road access to and within Indian reservations, Indian lands, and Alaska Native Village communities.” See U.S. Department of Transportation, Office of Tribal Transportation, https://highways.dot.gov/federal-lands/programs-tribal.
Of the $3 billion in tribal transportation spending, $100 million is allocated toward tribal transportation facility bridges. An additional $825 million is available under the same program in supplemental appropriations. Under Section 14004 of the IIJA, the bridge-specific funds are to be used:
(1) to carry out any planning, design, engineering, pre-construction, construction, and inspection of new or replacement tribal transportation facility bridges;
(2) to replace, rehabilitate seismically retrofit, paint, apply calcium magnesium acetate, sodium acetate/formate, or other environmentally acceptable, minimally corrosive anti-icing and deicing composition; or
(3) to implement any countermeasure for tribal transportation facility bridges classified as in poor condition, having a low load capacity, or needing geometric improvements, including multiple-pipe culverts.
Under the new law, the Bureau of Indian Affairs will receive a $270 million appropriation for its road maintenance program. The IIJA also raises the percentage of tribal transportation funds available to tribal governments applying for highway safety improvement projects from 2 to 4 percent.
The new law sets aside $9 million of the tribal transportation dollars to carry out the Tribal High Priority Projects Program, which helps repair or reconstruct eligible tribal transportation facilities. The IIJA also contains a separate, $30 million annual appropriation toward the Tribal High Priority Projects Program.
The IIJA creates the Office of Tribal Government Affairs within the Department of Transportation, to be led by an Assistant Secretary for Tribal Government Affairs. It also contemplates a consultation process between the Secretary of Transportation, Indian tribes, Alaska Native villages, and state transportation departments to develop best practices for sharing and analyzing on-reservation crash data, as well as to create a standardized form to implement those best practices.
Finally, the IIJA requires the Secretary of Transportation to allocate at least one seat on a newly formed working group on covered transportation resources to tribal governments.
Matt Slovin is an Associate at Galanda Broadman, PLLC, an Indigenous rights law firm. His practice focuses on Indian civil rights litigation, as well as cases involving tribal governments and enterprises.
