The North Dakota Department of Transportation (NDDOT), the North Dakota Federal Highway Administration Division Office (FHWA-ND), and 11 interested tribes partnered to develop an innovative Section 106 Programmatic Agreement (PA) for Tribal Consultation. The PA empowered tribes to protect their cultural resources and participate in transportation decision-making.
Section 106 of the National Historic Preservation Act requires Federal agencies to consult with all Federally recognized tribes that may have a cultural or religious association to historic resources affected by Federal actions. The FHWA-ND is formally responsible for complying with the Section 106-related tribal consultation; however, the NDDOT conducts the day-to-day consultation on behalf of FHWA. While NDDOT had been consulting with local tribes for many years, it identified a critical need to refine its consultation approach and to formalize the process according to the needs of the different tribes. As a result, the NDDOT, FHWA-ND, and 11 interested tribes developed a Tribal Consultation PA that established a defined, streamlined process to provide consultation on potential effects from proposed highway projects. The PA addresses impacts on prehistoric burials, village sites, campsites, stone circles, stone cairns, ceremonial grounds, plant collecting areas, gardening areas, and rock art.
The PA is the first of its kind; it establishes a cohesive, collaborative group effort to tribal consultation. The idea to work collaboratively came from the tribes, who felt that with their joint expertise, they were stronger and more effective when working together. To facilitate the collaborative consultation, the PA established a Tribal Consultation Committee (TCC) comprised of representative from each consulting Indian reservation, NDDOT, and FHWA-ND). The TCC meets quarterly to discuss projects and associated cultural resource issues. Working through the TCC, rather than on an individual tribal basis, allows for more effective cultural resource management and reduces time demands on the tribes, NDDOT, and FHWA.
Additional elements of the Tribal Consultation PA include:
This innovative PA affirms the joint commitment of the NDDOT, FWHA, and the consulting tribes to establish and sustain a relationship of mutual trust, respect and open communication. This agreement can serve as a model for other FHWA Divisions and state departments of transportation seeking to consult with multiple tribes in a proactive, culturally sensitive, and collaborative manner.
For more information about North Dakota's Tribal Consultation Programmatic Agreement, please read In Their Own Light: A Case Study in Effective Tribal Consultation or contact Mark Schrader, FHWA-ND, at Mark.Schrader@dot.gov.