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    <managingEditor>tris-trb@nas.edu (Bill McLeod)</managingEditor>
    <webMaster>tris-trb@nas.edu (Bill McLeod)</webMaster>
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      <title>Legal Problems Arising out of Highway Programs. Topic 26-01. Effects of Indian Treaties on Development and Operation of Transportation Facilities</title>
      <link>https://rip.trb.org/View/1889475</link>
      <description><![CDATA[The State of Washington was recently required to redesign the culverts beneath its roads to facilitate the passage of salmon. This mandate arose from the interpretation of treaties with American Indian tribes dating back to the 1850s, which predated Washington’s admission to the United States. These treaties specifically address fishing rights. A proceeding in the ongoing case of United States v. Washington affirmed these rights, leading to the recognition that the state must update its transportation infrastructure to ensure the protection of salmon habitats.

The significance of tribal treaty rights is now increasingly influencing local and state planning and regulatory bodies, particularly in their decisions regarding the construction and operation of transportation facilities.

In 2020, the U.S. Supreme Court reinforced the fact that American Indian treaties established before statehood—and never abrogated by Congress—remain in effect. In McGirt v. Oklahoma, the Court ruled that a Native American accused of crimes committed within the boundaries of a reservation established prior to Oklahoma’s statehood could not be tried in state court (591 U.S. ____ (2020)) because, pursuant to a treaty with the Muscogee Nation, the State of Oklahoma remained, for relevant purposes, “Indian country” subject to federal jurisdiction. This decision underscores the necessity for states to reassess the ongoing relevance of treaties enacted before they achieved statehood.

NCHRP LRD 94: Effects of American Indian Treaties on Development and Operation of Transportation Facilities examines how state departments of transportation (DOTs) plan, develop, and operate transportation infrastructure that crosses lands reserved by treaty. Key considerations include:

    Ongoing validity of treaties.
    Impact on modern development.
    Engagement with tribal stakeholders.                                   

This digest will be valuable to transportation attorneys representing state departments of transportation (DOTs) and authorities, as well as their contractors and consultants. It will also benefit policymakers, local, state, and federal personnel, transportation practitioners, decision-makers, and stakeholders involved in ensuring that transportation projects comply with legal and cultural obligations. 
 ]]></description>
      <pubDate>Tue, 02 Nov 2021 15:15:03 GMT</pubDate>
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      <title>Legal Problems Arising out of Highway Programs. Topic 26-02. Analysis of Arbitration and Holdings in Construction Disputes</title>
      <link>https://rip.trb.org/View/1889476</link>
      <description><![CDATA[Arbitration can be a useful tool to save time and money in resolving disputes concerning the construction of transportation projects, but the process can be opaque and risky since the results are rarely made public. State departments of transportation (DOTs) would benefit from a database of the various dispute resolution processes being implemented, and the outcomes of those processes that could be used to spot trends in the processes and the results. The research team will ask state DOTs to share what processes they use to resolve construction disputes and the results from those processes, while working closely with the states to protect confidential and privileged information. Many of the available court records and reports may have sections redacted, but even heavily redacted information may be useful to help spot trends in processes and results since very little data currently exists. OBJECTIVE: The objective of this research is to produce a legal research digest that includes the following:
1.    What state statutes or regulations are in place governing resolution of disputes?
2.    What processes are DOTs using for resolution of construction disputes (e.g., contracting officer decisions, executive directors or transportation commission decisions, mediation, dispute review boards (binding) or panels (non-binding), arbitration (binding, dispute size limits, etc.), and litigation)?
3.    What rules are used for the different processes (e.g., timing, makeup, and administration of panels, enforcement of contract clauses) and how do the rules affect the outcome of disputes?
4.    Analysis of binding dispute process decisions to determine whether it’s a useful tool to save time and money for construction disputes. Identify: (1) contract provisions that arbitrators are typically asked to enforce; (2) fact patterns and other issues that cause arbitrators to deviate from settled law and contract terms; (3) levels of proof required to prove damages; (4) percentage of holdings that materially deviate from settled law; and (5) differences in the levels of discovery conducted between the arbitration hearings and similar court hearings. 
 
]]></description>
      <pubDate>Tue, 02 Nov 2021 15:06:44 GMT</pubDate>
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