Best Practices for Effective Tribal Consultation
Community & Cultural Concerns
Research Idea Scope
There are several web sites, reports, studies, and guidance on the tribal consultation process associated with historic preservation compliance and transportation project delivery. The following is a sample of these resources, which include examples of best practices employed by state Departments of Transportation (DOTs), the Federal Highway Administration (FHWA), and tribes:
Consulting with Indian Tribes in the Section 106 Process. This guidance from the Advisory Council on Historic Preservation (ACHP) clarifies the requirements for federal agencies to consult with tribes, as outlined in 36 CFR 800. This guidance explains when Federal agencies must consult and what issues must be addressed as part of this consultation.
In 2008, the ACHP published Consultation with Indian Tribes in the Section 106 Process: A Handbook. The handbook is a reference for federal agency staff responsible for compliance with Section 106 (http://www.achp.gov/regs-tribes2008.pdf).
Section 106 Tribal Consultation Q & A’s. The Federal Highway Administration has a website that provides brief summary statements on issues involving tribal consultation, including a discussion on what constitutes appropriate consultation methods.
Transportation Circular EC039. Conference on Transportation Improvements. This TRB Circular reports on the proceedings of a conference, held in Albuquerque, New Mexico in the fall of 2000. The conference examined and discussed tribal consultation and project development. The conference’s goal was to report on and examine best practices in effective government-to-government relationships. The case studies discussed at the conference demonstrated the value of including tribes in the planning phases of new projects.
Best Practices Study on Tribal Consultation in Historic Preservation. The National Association of Tribal Historic Preservation Officers, in collaboration with the Advisory Council on Historic Preservation and with funding by the National Park Service, published this study, which examines best practices in tribal consultation for Section 106 undertakings.
Several of these studies, in addition to other best practices and guidance, are available on the Center for Environmental Excellence by AASHTO web site, under the section dealing with tribal consultation:
In addition, there are two on-going studies that are relevant to this proposed NCHRP research project. One is NCHRP 25-25, Task 49, Effective Practices for Considering Historic Preservation in Transportation Project Planning and Early Project Development. This NCHRP project includes two case studies involving the integration of tribal consultation with the planning process. The case studies are from New Mexico and North Dakota. The latter involves the use of an innovative, multi-tribal Section 106 programmatic agreement. The New Mexico case study examines the participation of tribes in local transportation systems planning. The second on-going study is NCHRP 08-65, Guidebook for Successful Communication, Cooperation, and Coordination Strategies between Transportation Agencies and Tribal Communities. This study is scheduled to be completed by the end of 2009.
The objective of NCHRP 08-65 “is to develop a Guidebook that provides practical strategies for communication, cooperation, and coordination between transportation agencies and tribal communities in order to facilitate successful transportation projects.” The study will:
Summarize both the positive and negative experiences (problems, obstacles, and successes) of tribes and transportation agencies related to the planning, environmental review, design, construction, operations, and maintenance of transportation projects.
Provide an assessment of legal and policy requirements and individual or organizational cultural competencies that support or detract from successful transportation projects involving tribes.
Recommend criteria, strategies, and performance measures for successful communication, cooperation, and coordination between transportation agencies and tribes on transportation projects.
The Guidebook will provide practical strategies for communication, cooperation, and coordination between transportation agencies and tribes in order to facilitate successful transportation projects. The recommendations contained in the Guidebook will be illustrated with appropriate examples from transportation projects identified during the study.
Despite the availability of numerous resources on tribal consultation, members of AASHTO’s Standing Committee on the Environment (SCOE) have identified tribal consultation as one of the most challenging components of the transportation project delivery process. Another area of concern is the requirements of Section 6001 of SAFETEA-LU. During the development of long-range transportation plans, MPOs and states transportation agencies must consult with tribal agencies responsible for historic preservation. Though state DOTs have been consulting with tribes for many years, this is a new area for MPOs and other local transportation agencies.
Several of the resources discussed above highlight some of the impediments to effective tribal consultation in the context transportation project delivery. These include:
- Tribes’ limited administrative capacity to effectively participate in the various consultation activities required under current laws and executive orders. The administrative burden among tribes is particularly great, since they often receive within a single year thousands of requests for consultation from multiple federal agencies, and do not have the staff or resources to respond to all of these requests.
- FHWA and state DOT staff cannot commit the time and resources needed for successful tribal consultation. This is due, in part, to current limitations in staffing and funding, and the need to focus on other program priorities.
- The often large number of tribes that claim historic interest in areas impacted by proposed transportation projects. This is particularly an issue among western states and the state of Alaska.
- State agencies must consult with tribes no longer physically present in the state.
- Several tribes are still in the process of documenting the historic areas they inhabited.
Are these impediments the primary reasons why state DOTs continue to identify tribal consultation as one of the most challenging components of the transportation project delivery process. Are there other reasons for these challenges? Are there any best practices that directly resolve or address these challenges?
The goals of this research project are to pinpoint and fully explore the reasons why state DOTs continue to identify tribal consultation as one of the most challenging components of the transportation project delivery process; and whether or not this applies to all state DOTs or particular state DOTs. The study will also examine the challenges of the consultation process from the perspective of federally-recognized tribes and FHWA. Based on this initial research, the study will identify best practices that address the specific reasons and issues behind these challenges.
This research study will also evaluate whether or not the available resources referenced above are being used by state DOTs, local transportation planning organizations, tribes and FHWA; and if they are not being used, determine why. In addition, this research will examine the state of the practice among MPOs and other local transportation planning agencies, as a result of the historic preservation-related tribal consultation requirements of Section 6001 of SAFETEA-LU.
This research project will have three tasks:
Conduct a national survey of FHWA state division offices, state DOTs, local planning and transportation agencies and organizations, and tribes to:
- Determine if all or some agencies and tribes consider consultation as one of the most challenging components of the transportation project delivery process.
- Identify the specific reasons and issues that make consultation a challenge.
- Determine if agencies and tribes are using available resources to assist and/or guide consultation, and if they are not being used, determine why.
Based on the results of the survey, identify best practices used by agencies and tribes to address the specific reasons and issues that make consultation a challenge. In addition, identify best practices for effective tribal consultation among MPOs and other local transportation planning agencies.
Present the results of the survey and identified best practices in a report, and provide suggestions for the wide dissemination of the report’s findings to FHWA state division offices, state DOTs, local transportation planning organizations, tribes, and other practitioners.
Harold Hunt, California Dept. of Transportation Gail D'Avino, SCOE Community and Cultural Concerns Subcommittee