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Tribal Consultation

III: What is Tribal Consultation?

According to the U.S. Department of Transportation, Tribal Consultation is:

"meaningful and timely discussion in an understandable language during the development of regulations, policies, programs, plans...that significantly or uniquely affect federally recognized American Indian and Alaska Native tribes and their governments."[3]

Additional Federal Laws

  • Title 23 USC - Highways - for impacts on tribal properties by Federal-aid projects.
  • National Environmental Policy Act (NEPA) - for environmental impacts on tribal properties.
  • National Historic Preservation Act (NHPA) - for impacts on tribal historic, religious and cultural properties.

The process is still relatively new but continually strengthened by presidential orders and Federal laws. One such law is the Safe, Accountable, Flexible, and Efficient Transportation Act: A Legacy for Users enacted in 2005. Known as SAFETEA-LU, this law governs how transportation is administered in the United States and affirms the importance of tribal consultation in the transportation planning process.

SAFETEA-LU may be accessed at http://www.fhwa.dot.gov/safetealu/legis.htm. Additional Federal laws that mandate tribal consultation are listed in the text box.

It is important to note that the Federal consultation process takes precedence over a State, regional or metropolitan tribal consultation process. The relationship between governments in tribal consultation is illustrated in Figure 3.

Given the increase in collaboration and partnership on transportation issues, however, the number of State and metropolitan government-to-government laws, executive orders, policies and programs are also increasing. Examples of this are provided in Section IV of this module.

A diagram demonstrates the relationship between Federal and State governments, metropolitan planning organizations, and tribal governments in transportation. On the left side are three boxes stacked in a row with "Federal Government" at the top, "State Governments" in the middle, and "Metropolitan Planning Organizations" at the bottom. Each box is also connected by a separate arrow to and from a box on the right called "Sovereign Tribal Government."

Figure 3: Relationship between Federal and State Governments, Metropolitan Planning Organizations and Tribal Governments in Tribal Consultation

Guiding Principles in Tribal Consultation

Tribal consultations among governments can be contentious, complicated and span many years. It is made easier when the parties have a healthy and respectful working relationship before, during and after the consultation. According to a recent national research study, the most successful tribal consultations are governed by three principles: communication, coordination and cooperation.[4]These principles are defined here.

Execution of these principles will strengthen the interpersonal relationships, knowledge and trust among the consulting parties.

Communication The process for the exchange of information, data or knowledge through speech, writing and visual tools.
Coordination The process for defining and organizing activities, events and tasks for achieving a mutual goal.
Cooperation The process in which the consulting parties agree to work together in planning, programming and project delivery.
A figure sits working at a computer.

[Before, during and after consultations]

Communication

  • Presentations: Oral presentations, with aids such as hand outs and PowerPoint slides, educate on issues of common interest and concern to the parties. They are effective when followed with questions and answers.
  • Data Collection: The collection and organization of project data aids information sharing and exchanges.
  • Standards and Handbooks: These documents are from neutral organizations such as the American Indian Research and Policy Institute and the American Association of State Highway Transportation Officials. They facilitate understanding of complex cultural and technical issues.
  • Newsletters and Bulletins: These tools keep the consulting parties up-to-date on project activities and progress.
  • Mailings and Response Forms: Mailings with response forms (tear off or attachments) solicit immediate responses from the consulting participants on how the effort is progressing.
  • Tribal Monitor: This neutral and knowledgeable third party monitor may be requested by the parties to attend meetings and participate in consultation conversations.
  • Training: Either party may sponsor training to heighten group knowledge on a range of topics.

Four figures have a discussion while sitting at a table.Coordination

  • Meetings, Summits and Workshops: Regular meetings between the consulting parties have a stabilizing effect. Summits and workshops help to identify the next steps in the consultation process.
  • Tribal Consortium: A consortium may represent several tribes from a specific region. The contributions of these entities broaden and diversify the resources and knowledge of the parties engaged in consultation.
  • Tribal Liaisons and Coordinators: Tribal liaisons and coordinators are the experts for their agencies. They educate on issues and coordinate the exchange of critical information among the consulting parties.
  • Formal Agreements: Consultation agreements may be forged at the program level and project level. They memorialize the terms and conditions agreed to by the consulting parties.
  • Regional and State Conferences: Regional and State conferences are forums for networking and the exchange of views and information.

Cooperation

  • Planning Organizations:Planning organizations are entities charged with developing the Long Range Transportation Plan and the Transportation Improvement Program. They have the potential to encourage cooperation among consulting governments and may commit their resources to the process.
  • Regional Transit Districts and Coalitions: A regional transit district or coalition may have multiple tribal memberships within their service area. Their use and involvement strengthens already established relationships.
  • Resource Sharing: Consulting partners may agree to pool and share resources for a specific transportation project or activity.

Practice While You Learn!

In addressing the hypothetical problem on page 3, ask yourself:

  • Will any of the three tribal consultation principles and their resulting activities help solve the problem?
  • Which principles and activities would work best?Why?
Updated: 11/25/2014
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