Identification of Results-Oriented Public Involvement Strategies Between Transportation Agencies and Native American Tribal Communities (2011)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

23 Chapter 3 Findings and Applications 3.1 Literature Review Cooperation on transportation issues is impacted by complex issues such as tribal/ state sovereignty, intergovernmental agreements, jurisdiction, regional planning efforts, right-of-way (ROW) acquisition, funding and maintenance. Even when there are common interests, the planning, design, and implementation of transportation projects require coordination and cooperation among tribal governments and federal and state transportation agencies. The researchers conducted a review of existing literature on programs and initiatives regarding transportation projects affected by, or of interest to, tribal communities to document the challenges and issues of these government-to-government relationships and to identify best practices that address those issues. The study of the state of the practice had the following objectives: • Identify and categorize issues surrounding transportation projects affected by or of interest to tribal communities. • Identify programs implemented and initiatives taken to alleviate issues, as identified in the previous objective. • Identify best practices in transportation projects affected by or of interest to tribal communities and define a path forward for further analysis of the literature in order to identify practices implemented to address the identified issues. A total of 120 documents, which include: articles, reports, Web sites, and case studies, were reviewed. All published literature regarding transportation projects were identified through Internet sources and public databases. A majority of literature provided for the review was predominantly published by state and federal agencies, with little literature published by individual tribes. Refer to the annotated bibliography as provided in the Technical Memorandum for the list of literature reviewed and its respective summaries. 3.1.1 Descriptive Statistics Statistics were compiled with the goal of identifying geographic areas and thematic areas that lack written documentation. Table 1 illustrates that all the reviewed documents describe efforts within seventeen state boundaries. Among the sources reviewed, 84 documents described efforts that were state specific. Among the state-specific documents, there are 60 described programs in which state DOTs were involved. As shown in Table 1, a majority of these documented efforts are from the states of Arizona and New Mexico. As shown in Table 2, 27 tribes were referred to in 29 documents, but additional documents were reviewed that did not specify the tribal entity. Only the Navajo Nation, which possesses many local chapters, was addressed in five documents while the remaining tribes were referred to once. This breakdown of the literature reviewed made it possible to compare the extent to which each DOT, tribe, and thematic area was addressed. This allowed the identification of state DOT and tribal entities that would require additional future research. 3.1.2 Identification of Implementation Practices This section includes a synopsis of the documents that were reviewed. These documents were grouped into two categories: (a) Overall Government-to-Government Efforts: these documents describe efforts to facilitate communication, cooperation and coordination between

24 transportation agencies and are government entity-specific without referring to any specific project; and (b) Project Specific Government-to-Government Efforts Information on the number of documents reviewed that address a specific category and subcategory is provided in : contains documentation on approaches implemented either by tribes or transportation agencies for the delivery of specific transportation projects. Table 3. Using this categorization, the state of practice was summarized into a list of different approaches to implement practices with specific examples of each. Table 1: Descriptive Statistics by State State Count DOT-related Count Alaska 4 2 Arizona 15 14 California 3 3 Georgia 2 1 Idaho 1 1 Iowa 4 4 Kansas 2 2 Maine 1 1 Minnesota 7 7 Montana 1 1 New York 2 NA New Mexico 28 13 Oklahoma 1 1 Pennsylvania 2 2 South Dakota 2 2 Washington 5 3 Wisconsin 4 3 Overall Government-to-Government Efforts Tribal involvement in the decision-making process and in regional programming for transportation infrastructure is evolving. Government-to-government agreements establish frameworks for mutually beneficial working relationships and formalize the tribal involvement process. These efforts improve success and address issues prior to the execution of specific transportation projects. The developed framework is intended to be comprehensive and implemented at all times, not just specifically for one transportation project. Efforts are documented through the following: • The establishment of formal agreements between transportation agencies and tribes, • The organization of intergovernmental tribal summits and meetings, • The establishment of the tribal liaison position within DOTs, • The formalization of best practices through publication of reference books and guides, • The investigation of the state of the practice of issues occurring with respect to transportation projects affected by or of interest to tribal communities.

25 Table 2: Descriptive Statistics by Tribe Tribe Count Metlakatla Indian Community 1 Navajo Nation 5 Coeur d'Alene Tribe 1 Standing Rock Sioux Tribe 1 Chickaloon Native Village 1 Assiniboine Tribe of Fort Peck Reservation 1 Sioux Tribe of Fort Peck Reservation 1 Oglala Sioux Tribe 1 Seneca Nation 1 Spokane Tribe 1 Fond Du Lac Band of Lake Superior Chippewa Indians 1 Caddo Nation 1 Shakopee Mdewakanton Sioux Community 1 Muckleshoot Indian Tribe 1 Iroquois Tribe 1 Nisqually Indian Tribe 1 Confederated Tribes of the Chehalis Reservation 1 Penobscot Indian Nation 1 Jicarilla Apache Nation 1 Seminole Nation 1 Pojoaque Pueblo 1 San Ildefonso Pueblo 1 San Juan Pueblo 1 Santa Clara Pueblo 1 Tesuque Pueblo 1 Table 3: Descriptive Statistics by Category Category Subcategory Count Overall Tribal Summit/Meeting 32 Tribal Liaison 7 Reference Guide 28 Research and Study 19 Other 33 Project Finance and Planning 42 Pre-Construction: Design 5 Pre-Construction: Environmental Evaluation 17 Pre-Construction: Right-of-Way 8 Construction 11 Operation and Maintenance 5

26 ESTABLISHMENT OF FORMAL AGREEMENTS Executive Order 13175 issued by President Clinton on November 6, 2000, describes the unique relationship between the U.S. government and tribal governments (Clinton, 2000). This established the formal requirements for agencies to consult with tribal governments on any project that affects tribal entities in order to reduce impositions. It serves to help streamline federal processes for tribal governments, and because many transportation projects are federally funded, state governments and other local entities had to implement practices for consultation. Following the Executive Order, states developed formal agreements, created organizations to conform to the new requirements, and strengthened relationships with tribal governments. Increasingly, Memorandums of Understandings (MOUs) have been developed which detail the tribal consultation process with federal and state agencies on transportation planning, development, and maintenance of projects. These agreements provide a practical framework for intergovernmental relations. Transportation planning efforts through Metropolitan Planning Organizations (MPOs) and Regional Planning Organizations (RPOs) are formalizing working relationships between tribes and local governments in regional and long-range transportation planning. These formal relationships and agreements significantly improve communication and cooperation on transportation planning and construction projects located on tribal lands. In order to assist in tribal consultation on transportation projects, DOTs like the Minnesota Department of Transportation (MnDOT) have taken the approach of creating and signing MOUs with tribal governments. MnDOT and several Minnesota tribes have signed MOUs to increase tribal employment on transportation projects taking place on or near reservation land. The MOUs define that the MnDOT and tribal representatives will take part in annual meetings to discuss long-range plans and a three-year program in an effort to increase tribal employment on transportation projects. In addition, the MOUs declare that the MnDOT will include provisions to support and increase such employment, and tribes will identify tribal members qualified for employment on these projects. The development of formal agreements, like MOUs, serves to streamline the transportation project process and increase tribal involvement. TRIBAL SUMMITS AND MEETINGS Using summits or meetings provides a means for state and tribal agencies to communicate on best practices, issues, and needs concerning tribal transportation projects. Intergovernmental transportation summits have improved communication between tribal, state, and federal agencies and provided a forum for open communication between leaders and decision makers. They also provide a chance to identify individual agency and mutual needs and issues. In 1999, the New Mexico Department of Transportation (NMDOT) took part in a summit that involved tribal, state, and federal representatives. This summit was organized to discuss issues surrounding transportation projects affected by or of interest to tribal communities throughout the state of New Mexico. The summit also provided tribal governments an opportunity to voice their needs in the transportation sector and to identify specific tribal concerns with transportation projects. Goals of the summit included improved government-to-government cooperation, agreement on communication protocols and processes, review of other successful government- to-government relationships, and the establishment of agreements that clarify and define issues

27 and resolutions. Successful project execution and coordination was identified as being ongoing and the need for continued participation in activities, such as the summit, was recognized. STATE DEPARTMENT OF TRANSPORTATION TRIBAL LIAISONS Tribal liaison positions in state DOTs provide a central point of contact. An individual serving as tribal liaison assists tribes and state DOTs with implementing direct and effective government-to-government relations by establishing long term working relationships based upon mutual concerns and by providing a culturally competent link between agencies. This position is further enhanced if held by a tribal member. The tribal liaison assists in creating relationships to facilitate tribal interactions with the state and improving project execution. The tribal liaison is typically well-versed in transportation projects concerning tribal communities and is viewed as a successful component of the state’s organizational structure. However, during a roundtable discussion between five state DOTs, it was recognized that the tribal liaison position was most successful when located higher in the decision-making process. In 2005, the Transportation Planning Capacity Building Program held a roundtable and panel discussion session between state DOT tribal liaisons in Spokane, Washington. Tribal liaisons for Arizona, California, Minnesota, Montana, New Mexico, Oklahoma, Washington, and Wisconsin are maintained by their respective state DOTs. Each of these states supports a full-time tribal liaison position dedicated to the coordination and improvement of tribal and state relationships. A special emphasis has been made on the importance of the role of liaison and the need for continuing education in transportation matters that affect tribes. FORMALIZATION OF BEST PRACTICES THROUGH REFERENCE BOOKS AND GUIDES To formalize best practices and make them readily available for use by states and tribes, reference books and guides have been created by state DOTs and other agencies such as the American Association of State Highway and Transportation Officials (AASHTO). These resources range from compilations of best practices on transportation projects affected by or of interest to tribal communities, to handbooks for agencies to follow in order to complete a transportation project within the existing legal framework. The guides detail approaches used by various states to improve the success of project execution, and to provide guidelines to follow when completing a transportation project as well as identify best practices in such projects. These resources provide a knowledge base to all transportation agencies that utilize them, facilitate information sharing across the transportation spectrum, and further streamline the project execution process by providing necessary resources, such as environmental permits. The MnDOT Tribes and Transportation e-Handbook is an online resource that provides agencies with helpful information from policy and programmatic agreements to information on environmental assessment and permitting. Tribes and transportation agencies can access this resource guide and obtain consistent guidance information on the project process. This resource further provides government entities with examples of prior successful projects that may be incorporated into a project at hand. In addition to tribal program information, this also provides information on various project phases (design, construction, etc.) as well as agreements signed to endorse construction projects that mutually benefit all government entities involved. Resources provided in the e-Handbook allow quick and consolidated access to government policy and

28 MnDOT practices to ensure that government entities are well informed when executing transportation projects. INVESTIGATION OF TRIBAL TRANSPORTATION ISSUES, PRACTICES AND PROGRAMS Research studies and assessments conducted by state DOTs serve as an investigation of transportation issues, practices, and programs. These studies focus not only on state activities in tribal transportation, but also serve to solicit information from the public, including tribal members. Research studies and assessments provide information about the programs and implementation practices that are being used by states across the nation as well as public opinion on project issues. This addresses both the issue of identifying successful practices utilized by states and the issue of open communication between transportation agencies and the public. A synthesis was conducted by CTC & Associates LLC for the Wisconsin Department of Transportation (WisDOT) in 2004 on state DOT activities with respect to transportation projects affected by or of interest to tribal communities. This study was performed to assist WisDOT in identifying manners in which other state DOTs implemented programs to achieve successful transportation projects. The study focuses on WisDOT current practices as well as the DOTs of California, Arizona, Washington, Minnesota, Iowa, New Mexico, Alaska, Montana, Pennsylvania, Idaho and Kansas. The report categorizes the research and practices into four areas: • The use of tribal liaisons, • The organization of tribal summits, • The publication of transportation research guides, • The establishment of advisory committees to address cultural issues between tribes and transportation agencies. Research on these practices and programs already implemented provides the DOT with a knowledge of the practice in transportation projects affected by or of interest to tribal communities and can be considered when creating and implementing new programs for successful coordination, cooperation, and communication. The use of an assessment to assist in the development of a program or method for project completion is illustrated in a project in Idaho in which public opinion was solicited in order to create a report and develop recommendations for negotiations on a natural resources management plan. The U.S. Institute for Environmental Conflict Resolution, the Coeur d’Alene tribe and other agencies assessed past negotiation efforts as well as the possible structure for future negotiations to update a Lake Management Plan for Coeur d’Alene Lake. The report and recommendations were based on interviews and discussions with individuals and agencies with an interest in the Lake Management Plan. This type of assessment takes into consideration the opinions and suggestions of the community in order to propose a plan of action and methodology for successful coordination, cooperation and communication. Project-Specific Government-to-Government Efforts Programs implemented for increased success in tribal transportation are not only employed in government-to-government efforts, but have also been implemented in project-specific issues.

29 These efforts were utilized to address issues that are predominant in project finance and planning, pre-construction, construction, and operation and maintenance. FINANCE AND PLANNING The lack of funding for transportation projects has led agencies like the Federal Highway Administration (FHWA) to develop ideas for innovative funding practices to tribal entities. In a presentation prepared by the FHWA Resources Center, innovative finance techniques available to tribal governments were identified. Some of these techniques include leveraging, credit assurance, partnerships, and matching funds with state DOTs. For leveraging, tribal governments can utilize Grant Anticipation Revenue Vehicle (GARVEE) bonds. Other finance options identified by the FHWA were credit assistance from State Infrastructure Banks (SIB), a Section 129 Loan, and the Transportation Infrastructure Finance and Innovation Act (TIFIA). The possibility of partnering with state DOTs for fund matching was identified as an innovative financial option for tribal governments in order to alleviate budgetary constraints. PRE-CONSTRUCTION Following the planning and acquisition of funding, pre-construction activities commence, including design, environmental assessment, and right-of-way (ROW) acquisition. Few case studies have been identified in which tribal involvement was documented in all areas of pre- construction. DESIGN Tribal consultation during the design phase of pre-construction is not frequently cited in literature reviewed. If a transportation project is undertaken by state or federal agencies and the same project is affected by or is of interest of tribal communities, the state or federal agency most often perform or contract out engineering design activities. Some instances were noted in which tribes contributed information, ideas, opinions, or suggestions on the final design of transportation projects, which enabled tribal designs and aesthetic concerns to be incorporated in a transportation project. ENVIRONMENTAL ASSESSMENT Environmental assessment has a special connotation when the project affects tribal land. Issues of environmental protection as they apply to tribes are unique as tribal land has significance beyond physical property. Tribal lands have historical, cultural, and religious meaning to a tribe, and as such, must be treated differently. Section 106 of the National Historic Preservation Act requires federal agencies to consider the impact of projects on historical land. Keeping tribal land issues in mind, states have implemented programs to treat such issues and alleviate problems that may arise when a transportation project affects tribal land. Using programs such as programmatic agreements and the establishment of the state or tribal historic preservation officer, states and tribes increase the prospect of success for alleviating environmental assessment and historic preservation issues. In the state of Minnesota, the MnDOT, the FHWA, and the Fond Du Lac Band of Lake Superior Chippewa Indians have signed a programmatic agreement implementing consultation in accordance with 36 CFR 800 on federal transportation projects in Minnesota. This agreement defines stipulations by which the Fond Du Lac Band of Lake Superior Chippewa Indians, the

30 FHWA, and the MnDOT abide by in order to satisfy Section 106 of the National Historic Preservation Act. If it is found that a project will have an adverse effect to property of religious or cultural significance to the Fond Du Lac Band, the FHWA was involved in creating a memorandum of agreement to minimize the effect on such historic properties. The formalization of roles on a transportation project concerning the Fond Du Lac Band assisted in defining clear and mutual paths of action on projects while streamlining environmental assessment and historic preservation processes. RIGHT-OF-WAY Sovereignty issues have a direct impact on the tribal concerns about ROW and state DOTs’ ability to maintain or construct improvements. Transportation projects often need to take place on tribal lands in order to address public transportation needs. In these cases, ROW acquisition impacts tribal sovereignty by the removal of tribal lands. Acquisition of tribal lands for ROW requires adherence to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as well as application to the Department of the Interior’s Bureau of Indian Affairs for use, occupancy, and construction on tribal lands. ROW issues are not just in the form of a monetary transaction, as there are significant issues that deal with culture. Federal and state transportation agencies have implemented several approaches for involving tribal entities into the ROW acquisition process with the goals of alleviating these issues and minimizing delays on project execution. In the spring of 2000, the Kansas Department of Transportation (KDOT) developed new statewide tribal consultation procedures in collaboration with the four federally recognized tribes in Kansas. Negotiations were held on tribal lands in order to determine the manner in which regular project contacts would occur. Appointing a DOT position dedicated to right-of-way alleviates land issues, provides a consistent contact, and retains expertise in tribal right-of-way acquisition within the DOT organization. CONSTRUCTION Construction of a transportation project commences upon the completion of pre-construction activities. Issues that arise during the construction phase are typically related to inter-agency cooperation among the involved parties. In order to complete a transportation project on tribal land, tribes and transportation agencies need to coordinate activities and cooperate effectively with one another to ensure that no delays occur. Adding to the complexity of construction activities, private contractors hired by DOTs and transportation agencies still must abide by tribal laws, regulations, and protocols. Cooperation in the form of pooled resources can assist in successful project execution if all agencies have well-defined roles and responsibilities. Kawerak, Inc., a nonprofit corporation and a regional consortium of tribal governments located in Alaska, plays a large role in Alaska transportation and project execution. Kawerak began contracting for the BIA in 1976 and began to operate a transportation-construction program in 2000 for the Bering Straits Region to meet the area’s transportation needs. Kawerak trains and employs natives of Alaska to plan, design, construct and maintain transportation projects. An Arizona transportation project, which took place in the adjacent communities of Tuba City and Moenkopi, encountered coordination issues due to the necessity of working inside the political boundaries of two separate, and distinct, tribal governments: the Hopi Tribe and the

31 Navajo Nation. The private contractor who was hired by the Arizona DOT (ADOT) had to coordinate with both tribal governments in regards to hiring practices, abiding by local Indian Employment Preference Laws, satisfying tax obligations, and obtaining permits for water resources. To address these requirements, the contractor began working with the tribal agencies involved at the pre-construction meeting. Additionally, follow-up and follow-through activities by means of in-person visits ensured compliance and successful completion of the project. OPERATION AND MAINTENANCE Perhaps one of the least-addressed issues in the area of project-specific efforts is in the area of operation and maintenance. Once a project has been planned and successfully completed that specific project still requires consultation between tribal and non-tribal entities in order to operate and maintain the constructed project. The issue of operation and maintenance (O&M) is mentioned in literature cases when the need for consultation is identified by an agency. While the need for continued collaboration efforts throughout O&M has been identified, few implementations were found addressing this need. Operation and maintenance matters were addressed in the U.S. 191/I-40 traffic interchange project in Arizona. The ADOT recommended three modern roundabouts for the new interchange, and wanted community buy-in and coordination for the roundabout alternative. They also expressed a need for coordination with the local Navajo chapter on the cleanup and maintenance of new sidewalks, as well as the payment of electrical utilities for the new street lights. The ADOT recognized that coordination was required beyond the construction phase of the project to address O&M; MOUs were negotiated to outline mutual obligations and considerations. 3.1.3 Literature Review Findings Many efforts have been implemented in order to improve coordination, cooperation, and communication between tribal governments and transportation agencies. While communication, coordination and cooperation practices "enable" collaboration, they do not guarantee that parties collaborate throughout the project development process or that actions are conducted with mutually beneficial outcomes. The recognized practices have been identified as being implemented to increase success, but assessing if they resulted in actual success was not within the scope of this component of the study. The interview phase captured nuances and tried to record lessons learned while the Delphi phase has been conducted to provide a “measure” of the perceived success of each practice. The literature reviewed showed that little documentation exists on implementation of a collaborative environment during project execution. While it is important for tribal governments and transportation agencies to have a basis for relationships and communication prior to the implementation of specific projects, it is also important for programs to be established during project execution to guarantee the continued success of these relationships. While overall level programs help improve successful government-to-government relationships, these programs and relationships need to be successfully transitioned to the project-specific level. 3.2 Content Analysis The literature review provided the Research Team with an overview of the programs and initiatives that have been implemented throughout the US to increase the success of transportation projects concerning tribal communities. However, the current study focused on the

32 identification of “practical strategies for Communication, Cooperation, and Coordination (3C) between transportation agencies and tribal communities in order to facilitate successful transportation projects.” First, this direct mention of 3Cs required the researchers to investigate the meaning of these words within the given context. Second, a content analysis was performed on a sample of the literature to develop a list of recurring issues as found on transportation projects of concern to tribal communities and specific communication, coordination and cooperation practices implemented to alleviate the issues. 3.2.1 Communication, Cooperation, and Coordination This direct mention of 3C required the researchers to investigate the meaning of these words within the given context. A review of definitions was conducted to include several dictionaries and glossaries. After this search, the Research Team adopted the following definitions for the terms Communication, Cooperation and Coordination Communication between tribes and transportation agencies is the process by which information, data or knowledge regarding issues and projects is exchanged through methods, such as speech, writing, or graphics by the transmitting party, so that it is satisfactorily received or understood from the receiving parties. . This operational definition of communication allowed researchers to “tag” practices that focus on the concept of exchanging information, data or knowledge and on the assessment that the transmitted message is satisfactorily received and understood from the receiving parties Similarly, a definition of coordination was identified as relevant to the topic: . Coordination between tribes and transportation agencies is the process by which representatives of these entities communicate information on how and when each party must act in order to harmoniously work interdependently for the purpose of achieving effective common results. In the given context, coordination encompasses the development and adjustment of plans, programs, and schedules among parties to achieve general consistency, as appropriate. Therefore, for coordination to happen parties need to communicate and the object of communication includes information on how and when each party must act and that there is mutual obligation for follow through. This operational definition of coordination allowed researchers to “tag” strategies that focus on the concept of exchanging information with the goal of developing efficiently interdependent plans, programs and schedules. The information defined “how and when each party must act.” In addition, a definition of Cooperation was identified: Cooperation between tribes and transportation agencies is the process by which representatives of these entities involved in carrying out the transportation planning, programming and delivery processes (i.e., state transportation agencies and tribes) work together to achieve a common goal or objective. This definition of cooperation was modified from other definitions to reflect the study focus. This operational definition allowed researchers to “tag” practices that focus on the concept of “working together to achieve a common goal or objective” as Cooperation Practices. 3.2.2 Issues and Practices As the cumulative Research Team experience revealed, the majority of efforts on transportation projects encompasses more than one of the previously defined aspects of communication, coordination or cooperation. Overall, the three Cs are often cited as the “soft

33 side of project management” and constitute a recurrent theme within the literature on project management. This framework of definitions was developed for projects affected or of interest to tribes. It relied on an escalating approach that would require additional effort and reward (in terms of relationship and trust building) when the entities are increasing interaction from communication to coordination and from coordination to cooperation as shown in Figure 3. To explain this concept on a generic transportation project, it is possible to envision that project stakeholders need to step up to the implementation of these three concepts from the underlying project context with its complex issues. When the project is of interest to and affecting tribes, the project context layer also acquires different meanings and presents different challenges for the delivery of the transportation project. During the content analysis, five major issues encountered on transportation projects of concern to tribal communities were identified, allowing for each of the acknowledged issues to be categorized. The issues identified are not restricted to a specific entity or the geographic area in which the project is located. Issues were grouped within five major categories with each category having several sub-categories. These issues were then further refined during the interview phase of the project and re-categorized into six major issues categories and their subcategories as can be seen in Chapter 4 of the Guidebook. Figure 3: Contextual Application of Three Cs When a transportation project is of interest to and affecting tribes, stakeholders need to step up to the same contextual ladder for implementing the three Cs concepts as a non-tribal project. However, an underlying layer of complexity is added to this effort in tribal transportation projects because the parties need to be culturally competent in order to correctly implement the three Cs. This Cultural Competence additional layer of complexity is underlying all the other contextual issues because it is present independently of other issues that are present. In addition, it may magnify effects from the other issues when cultural competence issues are present. Tribes and local governments do not fully understand each other’s cultural practices as they pertain to interaction in the transportation process. Major challenges in consultation efforts are meeting the individual cultural needs of each entity involved in the planning process and communicating cultural significance to transportation agencies. Specific issues within cultural competency are

34 (1) lack of cultural knowledge within the transportation sector, (2) the need for skill development in cultural competency and (3) the need for understanding of cultural context on projects. It would be difficult to meet the requirements set above for communication if the communicating party is not competent on the communication means to be used with the receiving party. In addition to the Cultural Competence additional layer of complexity, the initial project context layer also acquires different meanings and presents different challenges for transportation project of interest to and/or affecting tribal communities. First, tribes may consider certain resources to be sensitive and of concern when affected by a transportation project, while local, state and federal governments may not find the same resources to be of concern. Resources that may be defined “sensitive” by tribes include (1) natural and biological resources, (2) cultural resources and (3) historical resources. For example, while a site may not be federally recognized as a historical site, it may be considered historical by a tribe. Second, there may be areas of concern that cannot be divulged. In considering sites for projects, areas of concern like (1) natural and biological resources, (2) location of cultural sites, traditional practices, and (3) traditional symbols, may exist, but details on each are confidential and cannot be shared with non-tribal transportation agency staff. In addition, the federal government recognizes many tribes across the United States as sovereign nations, introducing an additional level of governmental entity participating in the transportation project process and a new dynamic in project execution. Issues regarding (1) jurisdiction, (2) government-to-government relations and (3) institutional relationships and protocols are introduced to the project environment. As a result, the relationship between states and tribes must rely on government-to-government protocol of mutually respectful interaction. This type of interaction may be sometimes well-established between recognized tribes and state governments, but it may become an issue itself when the tribal entity being involved in the public outreach process is a non-recognized tribe or the state agency does not recognize tribal sovereignty. Issues regarding land ownership often add to the difficulty of project execution. When acquiring land for transportation projects, Right of Way often leads to difficulty on a project when (1) full ownership of a site for a transportation belongs to a tribe, (2) one of the parties involved owns the surface of a proposed transportation site, and (3) mineral exploration rights of a site belong to an entity that is not the owner of the land in question. Last, funding is an issue common to virtually all transportation projects with unique aspects on transportation projects of concern to tribal communities, such as: (1) Project funding is an issue in all transportation projects because of funding deficiencies. (2) Project taxation and other fees can also lead to difficulties in project execution when tax and fee agreements between parties aren’t executed prior to project commencement. The issues described in the discussion above were structured into six major categories: 1. Cultural competency issues, 2. Issues related to the protection/preservation of tribal-sensitive resources, 3. Issues related to the confidentiality of tribal-sensitive matters, 4. Sovereignty issues, 5. Land ownership issues, and 6. Monetary matters issues.

35 Another result of the content analysis is a list of communication, cooperation and coordination practices that have been implemented for the alleviation of the six major categories of issues. The identified practices were categorized within the overarching practices of communication, coordination and communication. The practices were then refined and additional practices added during the interview phase of the project. 3.3 Case Studies In March 2009, the Research Team initiated the analysis of the interviews performed to date. Refer to Guidebook, Appendix C for structured case studies. In addition to the formulation of case studies, the interviews were utilized to refine the list of issues and practices results as well as to provide a thorough description of each of the issues and practices identified. Analysis of interviews for these issue and practice descriptions was completed in May, 2009. Preliminary results of the interview phase show a difference in the approach and level of consultation between state and local governments and tribal communities. The use and perceived success of each of the identified practices differed from region to region, with the level of involvement with tribes varying from state to state. It has also been identified that while some practices have been used and perceived as successful in one region, that does not assure the same success in an alternate region. For example, in a state in the North Central US, the consultation process is performed primarily between the state and a committee comprised of all tribes having an interest in transportation projects in the state. Professionals in this state have identified that the tribes consulted preferred to be consulted with as a group. This type of collaboration requires a consensus from all tribes involved regardless of the location of the project. Professionals in other states and regions (i.e., the Northwest) have identified that tribes that are consulted preferred to work with the state on a one-on-one basis, without other tribes in the state being involved if they are not directly affected by the project. This difference in program approaches and perceived success across the US suggests that successful practices for communication, coordination and cooperation may vary from region to region. 3.4 Delphi Study – Round 1 3.4.1 Overview This section summarizes findings from the first round of the Delphi Study. This initial round of the study was conducted by administering a survey on the perceived effectiveness of each practice when a given category of issues was present on a transportation program/project initiatives. Respondents needed to state their level of agreement/disagreement on a six-option scale or select the “I don’t know” option. Among the 70 individuals who accepted to participate to the Delphi panel, the researchers received responses from 48 individuals corresponding to an encouraging ~68% response rate. In addition, four NCHRP panel members submitted their responses to the questionnaire. Given the low response rate by the NCHRP panel members, these second set of responses was compiled, but it was not used in the findings. In addition to rating each item, panelists were asked to provide qualitative feedback on the practices. Responses from all panelists were compared and analyzed. Qualitative comments provided in response to open-ended questions were used to identify lessons learned and recommendations. In addition, they were used to address panel disagreement and modify

36 practices that showed agreement or consensus (Yellow Flag) or moderate agreement but a lack of consensus (Red Flag). Figure 4 shows the results of the practice evaluation assessment. This assessment utilized the numerical ratings to determine: • If respondents broadly agreed on the effectiveness of a given practice in presence of a given issue; • If there was a consensus on the median value among respondents. The first criterion was met if at least 75% of respondents show at least moderate agreement with the provided statement. The second was met if the Average Deviation Index (Burke & Dunlap, 2002) from the Median value was determined to be less than 1 to show inter-rater agreement. Different configurations were analyzed before deciding that four scenarios needed to be treated differently from each other. The four-color scale used in Figure 4 defines these scenarios that are described below. • Green (i.e., PASS: Broad Agreement on effectiveness (at least 75% of respondents showed some level of agreement) AND Internal Consensus (AD <1); • Yellow (i.e., REDO): Broad Agreement on effectiveness (at least 75% of respondents showed some level of agreement) OR Internal Consensus (AD <1); • Red (i.e., Potential REDO or FAIL): Significant Agreement on effectiveness (at least 60% of respondents showed some level of agreement); • Black (i.e., FAIL): Low Agreement (less than 60% of respondents showed some level of agreement). Researchers adopted the following criteria in stating the research findings that are detailed later in this chapter. • Green and Black items would not need follow-up investigation because they were clearly effective (i.e., Green) or clearly ineffective and/or the responses largely differed among respondents (i.e., Black). • Yellow and Red items would require further investigation through triangulation between these results and qualitative research results. • Yellow items include items for which at least 75% of respondents showed some level of agreement or items for which respondents showed internal consensus on the median value. These two groups of items were resubmitted to the Delphi panel for a new evaluation. Researchers used data collected in other research activities and responses in the Delphi questionnaire comments/feedback section to identify additional details and disclaimers to the formulation of the practice that could allow the practice to pass (i.e., green) or fail (i.e., black) the evaluation. A significant component of this “practice refinement” exercise relies in the researchers’ improved understanding of the application of the given practices resulting from their own experience and involvement in the research project thus far. • Red items were resubmitted to the Delphi panel for a new evaluation. Researchers analyzed responses in the Delphi questionnaire comments/feedback section. If respondents provided qualitative comments suggesting that additional details and disclaimers to the

37 formulation of the practice could allow the practice to pass the evaluation, the red-flagged items would be converted into Red-Yellow and resubmitted to the Delphi panel for a new evaluation in a revised form. Otherwise, they will be converted into Red-Black and dropped from the study. Figure 4: Summary of Delphi Study, Round 1

38 3.4.2 Results Analyzing the results of Delphi 1, all but one practice were deemed effective at least in the presence of an issue while three practices are considered effective for every situation. Eight practices may be able to pass the second round Table 4: Delphi Round 1 – Practice Ranking An analysis of the 108 practice-issue combinations is provided in Appendix A. Lessons learned and recommendations are also provided for each practice.

39 3.5 Delphi Study – Round 2 3.5.1 Overview This section summarizes findings from the second round of the Delphi Study. This round of the study was conducted by administering a survey on the perceived effectiveness of the practices that were selected for further evaluation after the first Delphi round. Respondents needed to state their level of agreement/disagreement on a six-option scale or select the “I don’t know” option. Among the 48 individuals who participated to first round of the Delphi panel, the researchers received responses from 34 individuals corresponding to an encouraging ~71% response rate. In addition to rating each item, panelists were asked to provide qualitative feedback on the practices. Responses from all panelists were compared and analyzed. Qualitative comments provided in response to open-ended questions were used to identify lessons learned and recommendations. Figure 4 shows the results of the practice evaluation assessment. This assessment utilized the numerical ratings to determine: • If respondents broadly agreed on the effectiveness of a given practice in presence of a given issue; • If there was a consensus on the median value among respondents. The first criterion was met if at least 75% of respondents showed at least moderate agreement with the provided statement. The second was met if the Average Deviation Index (Burke & Dunlap, 2002) from the Median value was determined to be less than 1 to show inter-rater agreement. Different configurations were analyzed before deciding that four scenarios needed to be treated differently from each other. The four-color scale used in Figure 4 defines these scenarios that are described below. • Green (i.e., PASS): Broad Agreement on effectiveness (at least 75% of respondents showed some level of agreement), and Internal Consensus (AD <1); • Green Star (i.e., PASS): Broad Agreement on effectiveness (at least 75% of respondents showed some level of agreement), and borderline Internal Consensus (AD~1); • Red (i.e., POTENTIAL PASS or FAIL): Significant Agreement on effectiveness (at least 60% of respondents showed some level of agreement); • Black (i.e., FAIL): Low Agreement (less than 60% of respondents showed some level of agreement).

40 Figure 5: Summary of Delphi Study, Round 2

41 3.5.2 Results Analyzing the cumulative results of Delphi Round 1 and Round 2, all but one practice were deemed effective at least in the presence of an issue while nine practices are considered effective for every situation. Table 5: Delphi Round 2 – Practice Ranking