Arizona Department of Transportation
The junction between Interstate 17 (I-17) and State Route (SR) 69 in Yavapai County, Arizona, now carries far more traffic than it was originally designed to accommodate. The interchange needs to be redesigned and rebuilt. The Federal Highway Administration (FHWA) and the Arizona Department of Transportation (ADOT) initiated an Environmental Assessment process to develop alternatives for improving the interchange. However, the redesign will need careful review because Native American cultural materials have been discovered nearby. Section 106 of the National Historic Preservation Act (NHPA) and its accompanying regulations define how such resources must be identified, evaluated, and considered during a Federal undertaking, such as this Federally funded highway improvement. Section 106 requires that these tribes be informed of, and involved in any decision-making process that may affect their historic and cultural legacy. Tribal participation in discussions about these resources will become a part of the official record for the project and will be reflected in the project's environmental impact documents.
Environmental justice is not solely about disparate health or economic effects -- it also applies when the cultural and historical resources of protected groups are potentially affected by a Federally funded transportation project. Also, Native American Tribes are different than other minority groups affected by the environmental impacts of transportation projects. Tribes are sovereign governments, analogous to State governments in certain (but not all) ways. Interactions among tribes, the FHWA, and State DOTs should be structured as a government-to-government relationship. Consultation with tribes is therefore different from traditional public involvement outreach. Reaching out to tribes is still crucial if Federal and State agencies want to be sure that environmental justice concerns are understood and addressed. Transportation officials need to adapt their outreach efforts to this special relationship.
Arizona has a particularly rich cultural and archaeological heritage. The State has been home to many different cultural groups over thousands of years. Evidence of these groups can be identified by artifacts they left behind, many of which are well preserved because of the area's arid desert environment. Many tribes in the region trace their ancestry back to these earlier groups. For these tribes, the handling of archaeological artifacts is not just important in protecting their cultural heritage, it provides continuity in maintaining their current way of life.
Generally, there are two kinds of projects in which Native American tribal participation, with an emphasis on environmental justice, is most likely to occur. Transportation projects conducted on or partially on Indian-owned land are the most obvious. These should always be conducted with the direct participation of the relevant tribes. But tribal participation is also required when transportation projects have the potential to affect historic resources on lands used by Native Americans in the past. Because all of this country was once owned and used by native tribes, transportation planners must be ready to consult with the appropriate tribal governments even when tribal historical resources are found far from any present-day tribal settlements.
This case study describes a small project that confronted the discovery of protected historical resources. The case illustrates an effective working relationship between Federal, State, and tribal governments _ a relationship that was built even though tribal participation in the early parts of the project was not as extensive or proactive as it should have been. The project described is ongoing, so the final results of this consultation are not yet known. Still, the case shows how different governmental agencies can work together on planning projects, and at the same time respond to their respective mandates, and strive to serve their constituencies in the best way possible.
The Nature of the Government-to-Government Relationship
Executive Order 13084, Consultation and Coordination with Indian Tribal Governments, explains that Federally recognized Indian Tribes are "domestic dependent nations" with "inherent sovereign powers over their members and territory." While tribal members are full U.S. citizens, with all the same rights and responsibilities as other citizens, they are also members of tribal nations that have separate laws, customs, traditions, and rights. This has some very practical implications for Native American participation in transportation planning. These implications are spelled out in DOT Order 5301.1, Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes, which explains in detail how to involve American Indians and Alaska Natives in DOT decision making.
The Interstate 17/State Route 69 intersection, also called the Cordes Junction Traffic Interchange, is located at Milepost 262.7 on I-17 in Yavapai County, Arizona. I-17 is the north-south interstate connecting Flagstaff and Phoenix. The area is predominantly rural in character, with a small commercial node adjacent to the interchange. The communities of Cordes Lakes, Spring Valley, and Mayer are each located within a few miles of the intersection. Arcosanti, an artists' colony/utopian community and a popular tourist attraction, is located 2.4 miles northeast of the traffic interchange.
Cordes Lakes and Spring Valley are the two residential areas closest to the project site. Cordes Lakes is a subdivision with 3,614 lots on 1,299 acres immediately to the southwest of the interchange. In 1996 it had approximately 2,500 residents. Spring Valley is several miles to the northwest of the interchange and has a school, 897 lots, and 13 tracts on 350.7 acres. The Arcosanti community currently has fewer than 100 residents, but has a projected population of 5,000 by 2050.
State and Federal officials anticipate that the population of the Cordes Lakes/Spring Valley area will grow as a result of increased development in the project area. Recreation and tourism are the largest components of the local economy. The Cordes Junction interchange provides access for numerous tourist attractions and recreational areas, such as the Fort Verde State Park and the Montezuma Castle National Monument. The Arcosanti community, also nearby, receives over 50,000 tourist visits annually. In addition to these attractions, thousands of visitors, truck drivers, and business travelers use I-17 and SR 69 enroute to other destinations in Arizona and neighboring States. Many travelers use services at the Cordes Junction interchange because of its central location between Flagstaff and Phoenix.
Growth in recreational and tourist travel, local residential populations, and travel-related business on the I-17 corridor are all contributing to increased congestion at this interchange.
Tribal Involvement vs. Public Involvement -- There Are Differences
Effective environmental justice practice requires an agency to reach out to specific minority or low-income populations to learn about their concerns, needs, and circumstances. This is usually done through some kind of targeted and expanded public involvement.
Indian tribes are sovereign nations, with governments that have jurisdiction over specific territories and individuals. According to the U.S. Constitution, court decisions, and various laws and regulations, tribal governments must be involved on a government-to-government basis in decision making on issues (such as transportation) that will affect them.
Tribal consultation is not the same as public involvement. Tribal governments must be formally notified of agency actions and proposals and should be given the same courtesies and opportunities for participation and review that are given to other governmental entities. Simply sending a letter or making a phone call to invite a tribe's participation is usually not sufficient -- agencies should be sure that the contact is acknowledged and its purpose understood. Once formal contact has been made authorities from each side may designate others to carry on technical discussions or other day-to-day consultations. Documenting this ongoing contact, (e.g., through an exchange of letters) is one good way to ensure that tribes are being respected and included in the transportation decision-making process. As indicated in U.S. Department of Transportation (U.S. DOT) Order 5301.1, correspondence from leaders of Federally recognized tribes should be treated "in the same manner as congressional correspondence as prescribed in the DOT Correspondence Manual."
U.S. DOT Order 5301.1 also suggests that tribal representation should be sought in traditional public outreach efforts, such as meetings, negotiations, rulemaking efforts, advisory committees, and focus groups. Individual members of native tribes, as well as tribal officials, can participate in these forums. In addition to these opportunities (which can be part of any good public participation effort), DOT and its State transportation partners must recognize the rights of tribal governments to represent their interests as governments. This is an important distinction between tribal involvement and outreach to other populations affected by Title VI.
The existing I-17/SR 69 interchange is badly congested. Built in the early 1960s, the intersection now serves well over 10,000 cars on an average day, and planners predict that this volume of traffic will more than double by 2020. Because it uses an outdated intersection design, local traffic and through traffic are forced to mix, causing traffic congestion and delays. Businesses and residents have complained to both the Federal and State highway authorities, asking that the intersection be upgraded and improved.
Transportation Improvements and Cultural Preservation. After several years of prior study, the FHWA and the ADOT completed a Draft Environmental Assessment that compared the environmental impacts of alternatives including design solutions for addressing existing and future traffic volumes. As part of that EA, the agencies commissioned a professional consulting firm to conduct an archaeological assessment of the project area. This cultural resources assessment surveyed the project area to identify any historic, cultural, and/or traditional resources that might be affected by proposed improvements at Cordes Junction. As the project progressed and alternative alignments were considered, the FHWA requested additional cultural resources inventory surveys. These inventories focused on historic use of the area by European and the region's Indian populations. By the time the EA was drafted, the reports had identified several locations near the project that might have historic resources, but they concluded that these resources would not be affected by any of the proposed interchange alignments. ADOT and the FHWA informed the Arizona State Historic Preservation Office (SHPO) about these conclusions, and the SHPO concurred with the finding that these sites would be avoided. The Draft EA was released in October 1998. In August 1999, a supplemental archaeological survey at the site was conducted, and some additional potential tribal historic resources were identified.
Several State and Federal laws provide protection for cultural, historical, and traditional resources that might be affected by government action such as road repair and construction. In summer 1999, the regulations implementing one of those laws, the National Historic Preservation Act (NHPA), had been amended to place a major emphasis on the role of Federally recognized tribes, in the process of reviewing any Federal action that has an impact on historic resources linked to the tribe. The proper treatment of historic, cultural, and traditional resources associated with a tribe or minority group is an important aspect of environmental justice.
Ideally, transportation agencies should consult with local Federally recognized tribes at the earliest stages of a project like this, inviting them to participate in the scoping of the EA and the design of the archaeological assessment. In this case, regular tribal consultation did not occur until after these historic resource surveys for the project had been completed. Dr. Owen Lindauer, a staff archaeologist with ADOT's Environmental Planning Office, reviewed the August 1999 survey and realized that there were Register-eligible resources within the project area that could not be avoided. He also noted that local tribes had not yet been given the required opportunities for participation in the planning process. In an August e-mail to the project manager, Dr. Lindauer explained these concerns and recommended a plan for tribal participation.
At this point ADOT and FHWA worked together to identify local tribes with ancestral associations to the area that should be consulted about these resources. The FHWA sent letters to seven identified tribes, describing the interchange project, the archaeological findings, and the tribes' rights to participate in evaluating these sites. Several tribes responded to these letters, most emphasizing that the ADOT and FHWA had an obligation to carefully document and protect the cultural resources in the area. Most tribes that responded simply wanted to be allowed to review and comment on any reports or decisions related to these historical resources.
Snapshot of the Cordes Junction AreaLocation:
Population: 3,972 persons live in the two census tracts closest to the interchange
Racial and ethnic composition:
Persons living below the poverty line:
Source: 1990 U.S. Census
First consultation between the FHWA and State Historic Preservation Officer.
Draft Environmental Assessment (EA) produced, which proposes a preferred alternative.
ADOT Environmental Planning Group, Historic Preservation Section, reviews EA. Regulations implementing Section 106 of the NHPA now require more in-depth tribal consultation if tribe's historic resources will be impacted, so seven tribes are given copies of the Archaeological Assessment for the interchange and asked for their review and comment.
ADOT staff and Salt River Pima-Maricopa Indian Community representatives visit site.
ADOT staff archaeologist contacts the Salt River Pima-Maricopa Indian Community representatives to confirm the results of the site visits.
ADOT staff and Hopi representatives conduct field visits at the site, noting expanded areas of prehistoric artifacts.
ADOT staff archaeologist contacts the tribes to confirm results of the site visits.
Tribal Involvement Deepens. By October 1999, two of the seven tribes had asked to participate more fully in the process of evaluating the potential historic sites at the I-17/SR69 interchange. These tribes, the Hopi and the Salt River Pima-Maricopa Indian Community, toured the sites with Dr. Lindauer. The visits were intended to encourage tribal representatives (from both the tribal government and the tribal cultural resources offices) to communicate their thoughts and concerns about the historic resources at the site directly. Although some of the discussions leading up to the site visits were informal, the FHWA and the ADOT also made an effort to communicate formally (through letters and follow-up phone calls) with the tribal governments involved to keep them informed of project developments.
The Salt River Pima-Maricopa Indian Community visited the site October 1999, and the Hopi visit was in March 2000. While visiting the site just prior to the Hopi tribal tour, Dr. Lindauer noticed areas with scattered cultural materials not identified in the original cultural resources inventory distributed to the tribal representatives prior to their visit. As a result, the ADOT team provided the Hopi with updated information about the site during their visit, and subsequently informed the other tribes of these new discoveries. The tours gave the tribal representatives an opportunity to examine the significant areas of the site with ADOT staff. The Hopi Tribe sent a representative from its cultural preservation office, as well as elders from three tribal clans. As he had in the past, Dr. Lindauer paid the tribal elders for their assistance in reviewing the site. During their visit these representatives agreed that the locations identified in the cultural resources inventory (and those discovered just before the visit) could be archaeological sites, and they expressed a preference for project alternatives that did not impact these locations. Their greatest concern was that the sites might contain human remains. The Hopi representatives made it clear that burial sites are sacred to them.
The Salt River Pima-Maricopa Indian Community representatives had already expressed similar concerns. The tribe's cultural resources coordinator and a representative of the tribal government toured the site with the ADOT representative, making close observations of the archaeological evidence at the site. Pottery shards, ashy soil, and other evidence suggested to the tribal observers that burials might possibly be present at the locations near the interchange. The tribal representatives suggested that ADOT and the FHWA test the sites further to determine if they were eligible for listing in the National Register of Historic Places and indicated that they should conduct data recovery at sites determined to be Register eligible. The tribal representatives also recommended that the Arizona State Museum prepare a burial agreement, which would clearly define how human remains would be handled and buried if they were found at the site. The Salt River Pima-Maricopa Indian Community representatives expressed a preference for alternative alignments that did not impact these sites.
National Historic Preservation Act, Section 106 Expanded Opportunities for Tribal Involvement
Section 106 of the National Historic Preservation Act (NHPA) of 1966, as amended, 16 U.S.C. 470f, requires Federal agencies (and Federally funded State partners) to take into account the effects of their actions on historic properties. Historic properties are locations, structures, or objects that are listed on, or eligible for inclusion in, the National Register of Historic Places. The regulations implementing Section 106 of the NHPA were amended in June 1999, and the role of tribes in reviewing historic items of concern to them was clarified and strengthened.
The NHPA applies to all National Register-listed or -eligible historic properties, not just those of interest to tribes. While this case study focuses on tribal participation in NHPA implementation, the Section 106 regulations may also apply to other environmental justice issues. As the Impact Analysis for the regulations states, "The Section 106 process is a means of access for minority and low-income populations to participate in Federal decisions or actions that may affect such resources as historically significant neighborhoods, buildings, and traditional cultural properties." For further information on the NHPA Section 106 regulations, see 36 CFR Part 800, or review the regulations on the web at www.achp.gov.
Building Trust.After the Cordes Junction site visits, ADOT's staff archaeologist discussed the day's events with each group of tribal representatives. The tribal representatives expressed specific concerns to the archaeologist, which were then verified by verbally reiterating each point with them. Later, these points were documented in writing. Copies of letters outlining each tribe's concerns were subsequently sent to the tribes. Although such an effort might seem redundant, it is an excellent way to build trust in a working relationship. The logic behind such careful communication is clear. State or Federal transportation officials will find themselves working with these tribal representatives again in the future. The quality of ADOT's interactions with tribes is an important component in this ongoing professional and personal relationship.
After the site visits, ADOT commissioned an Addendum to the original archaeological assessment. In this document, which was sent to the tribes for review, the boundaries of the two identified sites at the interchange were redrawn to reflect the broader extent of artifacts seen during the field visit with Hopi tribal representatives. Once the boundaries were redrawn, however, it became clear that the sites were now within the boundaries of the draft alternatives for the redesign of the Cordes Junction interchange. By this time the FHWA had begun to revise the EA and was considering new layouts for the Cordes Junction interchange. But, as the FHWA stated in a letter to the Salt River Pima-Maricopa Indian Community:
It is unlikely this site can be avoided given its location and therefore, this project would have an `adverse effect' on a historic property as a result. FHWA would prepare a Memorandum of Agreement (MOA) to address the adverse effect to this property. However, because the preferred alternative has not yet been selected, FHWA will delay completing a draft MOA until a preferred alternative has been selected.
The FHWA recommended that these sites were eligible for listing as archaeological sites. The letters from the FHWA to the tribes formally asked them if the tribes concurred that the sites were Register-eligible. The tribes were also asked if they concurred that there would be an adverse effect on these resources. When archaeological sites that would be affected by a project are significant for the information they contain, the FHWA has an obligation to develop alternatives that will avoid, minimize, or mitigate adverse effects to those historic properties. If the sites were listed and adverse impacts could not be avoided, the FHWA and ADOT would have some specific obligations to document and preserve the material at the sites to the degree possible. The FHWA has an ongoing obligation to consult with the tribes, through their tribal historic preservation office, about how to resolve these adverse effects once they are identified.
How the FHWA Can Help a State Pay for Tribal Consultation Under NHPA Section 106
In March 2000, a legal opinion by FHWA's Chief Counsel stated that, under certain specific circumstances, the FHWA can use Federal-aid funds to participate in such payments. The opinion concluded:
When a State so requests, FHWA may participate in eligible project-specific consultation costs and/or expenses incurred by a THPO [Tribal Historic Preservation Officer] or designated tribal representative. However, (1) FHWA participation is expressly limited to reimbursing those reasonable costs over and above general operating or overhead costs, (2) participation must be approved in advance, (3) FHWA's approval must be supported by an MOU or written contract and (4) prior to approval, the Division should make a determination that the requirements of 23 CFR 771.105(d) are satisfied.
Source: Excerpted from FHWA Office of Legal Counsel, HCC-1, Legal Opinion Re: Federal-Aid Participation in Payments for Tribal Services Under the National Historic Preservation Act.
An Uncertain Future. The original Draft EA, previously completed in October 1998, had identified a draft preferred alternative alignment for the I-17/SR 69 interchange that would affect these sites. Several public meetings and hearings were held on this alternative. As a result of these meetings, the FHWA and ADOT were presented with some new ideas about the interchange. By summer 2000, the FHWA and ADOT were revising the EA. The agencies are now considering new alignment alternatives that may avoid sites important to both the Hopi and the Salt River Pima-Maricopa Indian Community. The tribes' concerns were part of the public and intergovernmental review process that may result in a changed project.
Environmental Justice and the Weight of History.There has been a history of unfair and unequal treatment of Indian Tribes by Federal and State governments. Transportation practitioners and others can learn to be more fair and responsive to tribes. The NHPA and other laws give formal rights of participation and consultation to tribes, but those formal rights must be supplemented with an honest and open understanding of tribal needs and differing cultural perspectives. The ADOT and the FHWA are beginning to establish a good working relationship with many tribes in the region by actively listening to their concerns. It is that understanding, as much as any formal adherence to the requirements of laws and presidential orders, that will make it possible to achieve environmental justice when interacting with the tribes.
The Section 106 process is a means of access for minority and low-income populations to participate in Federal decisions or actions that may affect such resources as historically significant neighborhoods, buildings, and traditional cultural properties. The Council considers environmental justice issues in reviewing analysis of alternatives and mitigation options, particularly when Section 106 compliance is coordinated with NEPA compliance.
Effective Environmental Justice Practices
Several effective environmental justice practices were demonstrated on this project:
The design and exact alignment of the proposed Cordes Junction/I-17 interchange have not yet been determined, therefore its impact on the areas of concern to the Hopi and Salt River Pima-Maricopa Indian Community is not yet known. The new alignment may have no impact on historic, cultural, or traditional resources. If the selected alignment does have a negative effect on areas that are historically or traditionally significant to the tribes, an MOA will have to be signed with these tribes to ensure that impacts on these sites are minimized or mitigated appropriately, and that the tribes are involved in the recovery and/or preservation of artifacts or remains.
Because of Arizona's rich archaeological and cultural heritage, it is very likely that these same agencies and tribes will have to work together regularly. Building and maintaining a respectful working relationship is therefore not just crucial for this particular project, it is necessary for the future.
This excavated pit house on State Route 69 (just a few miles to the west of I-17/Cordes Junction) is all that remains of the homes of the village that was discovered at the interchange.
Broader Challenges. Consultation on this project did not start as early as it should have, but it was successful once it was begun. The consultation activities described in this case study to involve tribes came about not as the result of a concern for environmental justice, but because of the requirements of Section 106 of the NHPA, which strengthens tribes' voices in identifying, evaluating, and assessing the impacts of Federal actions on historic resources. Different tribes can have very different traditions, but for many, the protection of their cultural and natural heritage will be of pressing importance. An appeal for environmental justice should be expected when a region or site could be irreversibly and irretrievably disturbed by a transportation project.
Sensitivity to cultural differences is a hallmark of effective environmental justice practice. As with all cultural groups, tribes have distinct values, traditions, and needs. Understanding and responding to these needs requires planning practitioners to put aside their assumptions and to listen openly to tribal concerns. Cultivating this sensitivity is not always easy in the face of task deadlines and schedules, but it is a necessary part of the transportation planning process. Only by listening to and understanding tribal concerns, including those about environmental justice, can transportation professionals carry out the DOT's stated policy of designing solutions and tailoring programs that effectively respond to tribal transportation and cultural needs. That is a challenge that faces all practitioners who interact with Native Americans and their tribal governments.
Environmental justice concerns for tribes encompass more than access to and use of traditional cultural properties or items of cultural patrimony. Federal and State transportation agencies must make a greater effort to be knowledgeable, sensitive, and aware of the needs and heritage of tribes, and to incorporate that understanding into their activities. Informal conversations with transportation practitioners who were not involved in this particular case revealed the following challenges:
Taken together, the issues cited above pose some special challenges and illustrate that tribal environmental justice can be a difficult issue. The history of bias and injustices toward Native Americans cannot be overcome without hard work. Native Americans are both U.S. citizens and members of sovereign, tribal nations -- often with different religions and world views. To remove any gap in understanding, transportation practitioners and tribal representatives must continue to engage in serious, open dialogue in order to develop positive and open working relationships.
Funding Tribal Transportation
Planning Efforts As tribal governments enhance their planning capabilities, they can better represent their concerns and priorities in the transportation planning process. According to the Indian Reservation Roads Program, Transportation Planning Procedures and Guidelines, tribes can fund transportation planning and planning coordination efforts through four programs:
Source: Indian Reservation Roads Program, Transportation Planning Procedures and Guidelines. Also see http://flh.fhwa.dot.gov/programs/ttp/
Benefits from Environmental Justice in Decision Making
Cordes Junction/I-17 Traffic Interchange Draft Environmental Assessment, October 1998.
DOT Order 5610.2 Environmental Justice in Minority Populations and Low-Income Populations.
DOT Order 5301.1 Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes.
Executive Order 13084: Consultation and Coordination with Indian Tribal Governments.
FHWA Chief Counsel, Legal Opinion Re: Federal-Aid Participation in Payments for Tribal Services Under the National Historic Preservation Act, March 17, 2000.
Indian Reservation Roads Program, Transportation Planning Procedures and Guidelines.
National Historic Preservation Act of 1966, as amended, 16 U.S.C. §§ 470-470w-6.Contacts
Owen Lindauer, Ph.D.
Environmental Planning Office,
Historic Preservation Section
Arizona Department of Transportation
206 South 17th Avenue, MD 172A
Phoenix AZ 85007
Steven D. Thomas
Environmental Program Manager
FHWA, Arizona Division Office
234 N. Central Avenue, Suite 330
Phoenix, AZ 850042220
Cultural Resources Coordinator
Salt River Pima-Maricopa Indian Community
10005 E Osborn
Scottsdale, AZ 85256
Leigh Kuwanwisiwma, Director
Cultural Preservation Office
P.O. Box 123
Kykotsmovi, AZ 86039
Archaeological artifacts photos courtesy of Dr. Owen Lindauer, ADOT Historic Preservation Specialist.