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Tribal Consultation

IV: Fhwa, State DOT and MPO Practices

This chapter describes the tribal consultation practices of Federal and State governments and regional and Metropolitan Planning Organizations.

A. Federal Tribal Consultation in Transportation.

The Federal Highway Administration (FHWA) is the U.S. DOT administrative unit that is responsible for implementing the Federal-aid highway program and for ensuring tribes are protected from Federal-aid projects that impact their lands and properties.

There are specific Federal guidelines on tribal consultation that must be followed regardless of the size or complexity of a transportation project. The most widely and commonly used guidelines are from Section 106 of the National Historic Preservation Act.[5]Responses to frequently asked questions on Federal tribal consultation practices are provided here.

Frequently Asked Questions on Federal Tribal Consultation Practices.

Which tribes are consulted? Any federally recognized tribe that may be impacted by a project funded with Federal-aid highway transportation dollars.

How does FHWA identify the tribes that need to be notified? FHWA uses a number of resources to identify tribes for notification. One is the Native American Consultation Database which may be accessed at http://web.cast.uark.edu/other/nps/nacd/. Other resources include:

Other resources include the tribal governments themselves and the historic preservation records and personnel within State and regional agencies.

Who initiates contact? FHWA is responsible for contacting the tribe. Once the contact is made, FHWA will:

Who is contacted? The initial contact is from the Federal government to the highest ranking tribal official or officials. This may be the Tribal Chief, Tribal Chairperson, Tribal Governor and/or Tribal President.

How does consultation start? A FHWA letter is sent to the tribal official describing the proposed action. The letter may be followed with a phone call to ensure the correspondence was received.

Does the State DOT assume the FHWA role? No. FHWA cannot delegate Federal consultation responsibility to the State. The State DOT may assist, if FHWA and the tribe agree.

What if a tribe does not want to divulge information on a property? Some tribes believe the location of a sacred site or its existence cannot be divulged. In this, FHWA is required to follow the provisions of the National Historic Preservation Act that permits withholding of sensitive information from public disclosure.

Does FHWA fund consultation activity? Yes. Consultation activity is eligible but only under certain circumstances. The activity must be the result of a FHWA action and deemed eligible by the agency.

What is a Memorandum of Agreement (MOA)? The MOA is a formal agreement which memorializes the actions FHWA will take, in consultation with a State and the tribe or tribes, to mitigate the impact of a Federal-aid project on tribal lands or property. The tribe has the option to sign or not sign the MOA. A decision to not sign does not invalidate the agreement, prevent the tribe from continued involvement or terminate government-to-government relations.

What is a Memorandum of Understanding (MOU)? A MOU is a signed agreement between the consulting parties on the process and framework they will use to work together toward a goal such as completing or mitigating the impacts of a project.

What is a Programmatic Agreement (PA)?The Programmatic Agreement is the signed and binding agreement among the consulting parties that memorializes the procedures, processes and steps they agree to follow for consultation or to address a specific issue.

May FHWA assign special rights to an individual tribe? No tribe is accorded special rights in the consultation process. For example, one tribe may say the project is within an area defined by a treaty that affords it special rights and request other tribes be dropped from consultation. Alternatively, one tribe may consider a site to be directly tied to its ancestors and ask FHWA to exclude other tribes from the consultation. FHWA may not exclude the other tribes. It may, however, contact all of the tribes and ask whether any wish to defer their consultation to a single or limited number of tribes. FHWA may limit the number of consulting parties if consent is given by all of the impacted tribes.

TIP #5: Contact the FHWA Division Office in the State or States where the tribe’s land and cultural properties are located.

  • Request information on how FHWA conducts tribal consultation in the State. Keep this for future reference.
  • Ask if any of your tribe’s properties are listed or eligible for listing in the National Registry of Historic Places. Request a copy of these records. If there are errors, inform your tribe’s leadership so that the records are current and correct.

An Example of FHWA Tribal Consultation.

Tribes in North Dakota
Engaged in FHWA-State Consultations

  • Cheyenne River Sioux Tribe
  • Crow Creek Sioux Tribe
  • Crow Tribe (Apsaalooke Nation)
  • Fort Peck Assiniboine and Sioux Tribes
  • Lower Sioux Indian Community
  • Mandan, Hidatsa, Arikara Nation (Three Affiliated Tribes)
  • Northern Cheyenne Tribe
  • Oglala Sioux Tribe
  • Rosbud Sioux Tribe
  • Santee Sioux of Nebraska
  • Sisseton-Wahpeton Oyate Tribe
  • Spirit Lake Dakotah Nation
  • Standing Rock Sioux Tribe
  • Turtle Mountain Band of Chippewa Indians
  • Wahpekute Band of Dakotah Sioux
  • Yankton Sioux Tribe

One good example of Federal tribal consultation in transportation is in the State of North Dakota where FHWA-North Dakota (FHWA-ND), the North Dakota DOT and sixteen (16) tribes are involved.The process complies with Federal law that requires agencies to consult with federally recognized tribes if their lands and properties are affected by Federal action.

The consulting parties in North Dakota use a Programmatic Agreement (PA) that empowers the tribes to participate in and shape the tribal consultation process which FHWA-ND oversees. The North Dakota DOT provides day-to-day administrative support.

Programmatic Agreement (PA).

While North Dakota DOT had been consulting with tribes for many years, it was determined (by the tribes) that a more formal and coordinated effort was needed.The Programmatic Agreement eliminated redundancies and streamlined the process.Its focus is on how the parties consult on cultural resources affected by State DOT projects. These issues include:

The North Dakota process is featured in the FHWA publication In Their Own Light: A Case Study in Effective Tribal Consultation.The collaborative approach involves a Tribal Consultation Committee (TCC) comprised of representatives from each tribe and the Federal and State agencies.Under the terms of the PA:

North Dakota Tribal Consultation Framework

  • Programmatic Agreement
  • Consultation Committee
  • Information Exchanges
  • Resource Sharing
  • Heritage Manual
  • Training

State DOT Assistance.

The North Dakota DOT follows the direction it receives from FHWA. Its defined role is to:

Practice While You Learn!

  • Does the FHWA example in this section help solve the hypothetical consultation problem from page 3?
  • Ask yourself: Did the State DOT in the hypothetical problem correctly follow FHWA consultation procedures? Why or why not?

According to Mark Schrader of the North Dakota FHWA Division Office:

“The tribal consultation method North Dakota uses is going great. It continues to be an effective and efficient consultation process. And we are very satisfied with the results as are the tribes we work with. They are also very pleased with the continued success of this process.”

North Dakota Tribal Consultation Programmatic Agreement Honorees, November 2006.

A photo shows a group of 17 North Dakota Tribal Consultation Programmatic Agreement honorees holding up their award plaques.
Back row:Byron Olson, Archaeologist Standing Rock THPO; Conrad Fisher, THPO Northern Cheyenne; Mark Schrader, FHWA; Curley Youpee, Director Cultural Resources Department Fort Peck Assiniboine and Sioux Tribes; Franky Jackson, Consultant to Lower Sioux Indian Community; Calvin Grinnell, Cultural Resource Specialist, Mandan Hidatsa and Arikara Nation; Allen Radliff, FHWA; Kent Good, Consultant to NDDOT; Elgin CrowsBreast, Cultural Preservation Program Director, Mandan, Hidatsa, and Arikara Nation.

Front Row: Francis Ziegler, NDDOT Director; Jeani Borchert, NDDOT Tribal Consultation Specialist; Pam Halverson, THPO Lower Sioux Indian Community; Ambrose Littleghost, Cultural Advisor, Spirit Lake Dakotah Nation; Richard Bird, Jr., Chairman Economic Committee and Councilman at Standing Rock Sioux Tribe; Scott German, Vice-Chairman, Sisseton Wahpeton Oyate; Shannon Blue, President Lower Sioux Indian Community; Dianne Desrosiers, THPO Sisseton Wahpeton Oyate.

Federal Laws and Regulations governing State-Tribal Consultation

23 USC 135 (e)-(g); 23 USC 135 (f) (4)(B)

23 CFR:

  • 450.104
  • 450.208(a)(5)
  • 450.210(c)
  • 450.214(h)(i)
  • 450.216(d)

36 CFR 800

B. State Tribal Consultation in Transportation.

The Federal laws and regulations, referenced in the text box, require States to communicate, coordinate and cooperate with tribes in the development of statewide long-range transportation plans and State Transportation Improvement Programs (STIPs).When it is determined that tribal lands or properties may be impacted by State actions, States are required to develop and document their mitigation procedures in consultation with the affected tribes.

An Example of State-Tribal Consultation.

One good example of on going State-Tribal consultation is in the State of Minnesota. There are eleven federally recognized tribes within the State. Recognizing the independent sovereign status of each, the State, with its Department of Transportation (MnDOT) and in partnership with FHWA, has developed a framework for tribal consultation, which has strengthened over the years.

Statewide Consultation Framework.

Minnesota’s tribal consultation policies and initiatives are summarized here.

Indian Tribes in Minnesota

  • Bois Forte Band of Chippewa
  • Fond Du Lac Reservation
  • Grand Portage Band of Chippewa Indians
  • Leech Lake Band of Ojibwe
  • Lower Sioux Indian Community
  • Mille Lacs Band of Ojibwe
  • Prairie Island Indian Community
  • Red Lake Band of Chippewa Indians
  • Skakopee Mdewakanton Sioux (Dakota) Community
  • Upper Sioux Community
  • White Earth Reservation

In 2002, the federally recognized tribes, the State of Minnesota, MnDOT and FHWA signed an Agreement of Understanding pledging to communicate, coordinate and cooperate in transportation planning and program administration.The agreement is a collaborative approach that brings the parties together for information-sharing; reviews of transportation policy and programs; and decisionmaking. It also offers training and education to promote knowledge and understanding on complex issues.

The Minnesota Accord may be accessed at http://www.dot.state.mn.us/mntribes/pdf/accord2002.pdf

Following the signing of the Accord, the Governor of Minnesota issued an executive order in 2003 that affirms the relationship between the State and the Indian tribes within it. The order states:

–State agencies must recognize the legal relationship between the State and Indian governments and ac+cord these governments the same respect accorded to other governments.

–  When undertaking policies or programs that directly affect tribes, the State must, whenever feasible, consult with the tribes affected by the proposed action.

Executive Order 03-05 may be accessed at http://www.dot.state.mn.us/mntribes/pdf/execorder2003.pdf

Since 2001, six Minnesota tribes have signed agreements with FHWA, with concurrence by MnDOT. This is in accordance with 36 CFR 800 under Section 106 of the National Historic Preservation Act. These agreements pledge to mitigate State transportation impacts on important cultural resources identified by the tribes including, but not limited to, archaeological sites, architecturally significant properties, burial areas, other sacred areas and landscapes. This includes impacts on current and past tribal properties. The agreements set forth how the consultation process will take place. Although each agreement is unique to each community, the agreement signed with the Boise Forte Band of Chippewa in 2003 is representative of the others. It seeks to:

Minnesota Tribal Consultation Framework

  • Government to Government Transportation Accord
  • Executive Order 03-05
  • Programmatic Agreements
  • Highway Contracting
  • Indian Employment Memorandum of Understanding
  • State Department of Transportation Tribal Liaison
  • Advocacy Council for Tribal Transportation

– Develop a process for consultation,

– Simplify procedural requirements,

– Eliminate unnecessary paperwork,

– Acknowledge the importance of tribes,

– Commit time and energy to the process and

– Be creative in solving problems.

The agreement may be accessed at http://www.dot.state.mn.us/mntribes/pdf/boisforte2.pdf

Currently, FHWA and MnDOT are working to develop programmatic agreements with the remaining six Minnesota tribes. Verbal agreements are in place for consultation with an additional five tribes located in adjoining western States. If a MnDOT project is proposed within any of the Minnesota reservation boundaries, the agency always consults with the tribes on potential cultural resource concerns, whether or not a formal agreement is in place.

Also in 2005, after discussions resulting from a State-Tribal transportation summit, MnDOT meetings with the tribes and encouragement from FHWA, a new Memorandum of Understanding (MOU) was forged. It sets State procedures and objectives for employing tribal members in State highway projects on or near reservations. MnDOT and representatives of seven tribes meet annually to agree on which projects to target. Progress is tracked through Tribal Employment Rights Office (TERO) forms submitted by private contractors. The tribe’s responsibilities are to:

– Identify tribal members with appropriate skills,

– Recruit tribal members for training,

– Discuss membership requirements with unions and

– Educate contractors on tribal employment goals.

The MnDOT Policy Position on Indian Employment may be accessed at http://www.dot.state.mn.us/mntribes/pdf/employmentpolicy.pdf

A photo of Linda Aitken, the MnDOT Tribal Liaison.

There is a full-time tribal liaison to oversee and coordinate the State of Minnesota tribal consultation activities and programs. According to Tribal Liaison Linda Aitken:

“As tribal liaison, I serve as the point of contact between MnDOT and the tribes from the Commissioner’s (of Transportation) Office. Because we receive Federal funds for transportation projects, we have Federal legal requirements to consult with the tribes on issues such as environmental, historical and cultural preservation and sacred site issues.”

Much of the Tribal Liaison’s coordination work is with the Advocacy Council for Tribal Transportation (ACTT). This is a tribal transportation policy and decision making group with representatives from all of the tribes and co-chaired by tribal members. According to Aitken, much of the State - Tribal consultation policy development and decision-making occurs in this forum. The tribe representatives are the only voting members. Non-voting ACTT participants include:

Practice While You Learn!

  • Does the State example in this section help solve the hypothetical consultation problem from page 3?
  • Ask yourself: Did the State DOT have a tribal consultation framework, policy and personnel in place when undertaking the SR456 extension project. What was missing?

– FHWA-MN: Division Administrator

– BIA: Civil and Highway Engineers

– US Forestry: Transportation Planner

– Michigan TTAP: Assistant Director

– MnDOT: District Engineers

– Minnesota Counties: County Engineer, Cass County

– Minnesota Cities: Project Manager, City of Virginia

– Minnesota Indian Affairs Council: Executive Director

ACTT meets quarterly at rotating tribal reservation locations across the State. Its tribal transportation policy and program review, consultation and meeting activities may be accessed at: http://www.dot.state.mn.us/mntribes/advocacycouncil.html

TIP #6:Contact the State DOT in the State or the States where the tribe’s resources and properties are located.

How does the State conduct State-Tribal consultations? Who is responsible? What is the tribe’s role in the process? Keep this handy as it will assist your consultation work and activities!

C. Regional and Metropolitan Tribal Consultation in Transportation.

Federal Laws and Regulations Governing Regional Tribal Consultation

23 CFR:

  • 450.104
  • 450.202
  • 450.312(i)
  • 450.316(a)(c)(d)
  • 450.322(f)(7)

The Federal laws and regulations, listed in the text box, require federally recognized tribal governments to be consulted in the development of regional transportation plans and programs. In an extension of this, tribes in southern California are working with the San Diego Association of Governments (SANDAG) to strengthen regional-tribal relations.

There are seventeen federally recognized tribes in San Diego County, the area served by SANDAG. The Southern California Tribal Chairmen’s Association (SCTCA) is the nonprofit corporation representing 19 federally recognized tribes in Southern California, including the 17 in San Diego County. The chairs of the 19 tribes sit on the SCTCA board.

Since 2004, SCTCA has directly consulted with SANDAG through a government-to-government framework. This framework parallels the relationship between tribes and the Federal government, but with modifications for the regional context. This framework responds to the Federal directive that consultation be both ‘timely’ and ‘ meaningful.’

Regional Initiatives.

In the regional context, the government-to-government framework between SANDAG and SCTCA includes several initiatives. As described below, these include periodic diplomatic summits at key milestones or decision points, representation on the SANDAG Board and Policy Committee to influence regional policy in a number of areas, a tribal advisory group that delves in depth into regional tribal issues, and counterpart staff between the two agencies who assist with communications between SANDAG and the tribes.

A photo shows a large group of 2010 Tribal Summit Participants standing in a convention hall.
A photo of Sam Abed, the Mayor of Escondido, and Chris Devers, former Chairman of the Pauma Band of Luiseno Indians, at the 2010 Tribal Summit. Chris Devers speaks into a microphone.

This illustrated map shows all of the Tribal Lands in the San Diego Region

Timely and Meaningful Consultation

Like other regional, State and local government agencies, SANDAG sends formal notices to tribes to alert them of actions affecting them.These formal notices, however, are not the heart of SANDAG’s consultation process. The tribes and the region have sought to build a comprehensive government-to-government framework that respects their sovereignty while providing the opportunity to be involved in the regional decision making process in an ongoing manner rather than simply as part of discrete initiatives, therefore making their engagement more timely and meaningful.

TIP #7:Contact the Metropolitan Planning Organization in your area. How does it conduct Regional-Tribal consultation? Request copies of policies and procedures. Inquire on the role of the tribe. Keep this handy as it will inform your future consultation work!

TIP #8: When looking to build a relationship with another government, talk to people at the top of the organization. Talking to staff is good, but collaboration at higher levels in the organization makes the relationship really work.


 

Updated: 12/19/2013
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