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.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-1 APPENDIX A: ONLINE SURVEY RESPONSE DATA All responses lightly edited for clarity and anonymity. STATE DOT/FHWA RESPONSES 1. Does your agency incorporate tribal expertise into carrying out the Section 106 process, including identifying historic properties (i.e., places of religious and cultural significance), assessing effects, and resolving adverse effects? ⢠We contact tribes with affinity for the project area to let them know about the project and solicit if they would like to remain involved in the Section 106 process. We do not get many responses, and those responses rarely include information (or request for further consultation) that help identify historic properties. However, we have had some projects with closer tribal coordination that helped with identification and/or recommendations for how to better fit the project into the area. ⢠Tribes are afforded the same opportunities to participate in the Section 106 process as SHPO and other consulting parties. ⢠Yes, to the extent that tribes are willing to share such information, we gladly welcome the opportunity to incorporate traditional knowledge and expertise into the cultural resources investigation. ⢠On a project-specific basis. ⢠Division office has cultivated relationships with Federally Recognized tribes and DOT to develop a protocol for consulting on identification of historic properties. ⢠DOT reaches out to the interested tribes on every project for comments. If requested DOT will consult with tribes on needs such as tribal monitoring or additional field surveys, if requested. ⢠We meet with them and provide the opportunity for them to tell us what properties are within the project study area. ⢠There are currently no resident tribes in the State. The DOT has a Programmatic Agreement (PA) that covers the review of Federal aid highway undertakings in the State, including the process for identifying historic properties. In addition, there is a letter agreement, to be replaced with a tribal protocol (currently being developed), that governs the tribal consultation process in the State. The DOT provides tribal access to the NEPA process electronic project file system, for all NEPA] coverage areas including Section 106, to all federally recognized tribes with an interest in the State. They are informed with an email whenever a Section 106 activity commences; this includes identifying historic properties. The tribes have information on NEPA actions and activities available to them at all times.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-2 ⢠The FHWA Division consults with the Tribe on every project pertaining to the Section 106 Process. The FHWA engages the Tribe by providing opportunities to participate in field inspections, and archaeological surveys. In addition, every report prepared highlighting any potential impacts or impacts to cultural, religious resources of significance to the Tribe are provided for their review and comments. ⢠For projects on or near the reservations, we consult with the appropriate THPO. ⢠Tribes are provided with scoping information, then subsequent studies on some undertakings by project managers or cultural resources staff to see if they have any comments. Additionally, we have invited Tribes to ongoing field investigations. ⢠We routinely reach out to tribes and invite them to participate in consultation for larger undertakings, but typically responses are very limited and do not rise to the level of âincorporating tribal expertiseâ in most cases. ⢠There are no Federally Recognized Tribes and/or Tribal lands in the State. However, the DOT employees Cultural Resource staff who are 36 CFR qualified which assist in the completion of Section 106 reviews for all Federal aid funded projects and/or actions. Consultation with the SHPO, consulting parties and FHWA Division and/or Federal Preservation Officer is completed on projects to ensure Section 106 requirements are addressed, including tribal consultation requirements if/when applicable. Tribal Consultation is evaluated on a project-by-project basis. ⢠The DOT, in consultation with the FHWA Division and the SHPO, has identified a list of federally and non-federally recognized Tribes with potential religious or cultural interests in the State and, has developed a basic process for consulting with these Tribes when Federal aid funded projects or actions have the potential to impact Native American sensitive resources. A more formal process and/or development of programmatic agreements with Federally Recognized Tribes has been considered and may be pursued in the future when transportation priorities, funding and resources allow. ⢠We ask for their input throughout the consultation process. It depends on the type of project for the level of involvement. If it is a large EA or EIS there are more opportunities for involvement - separate meetings and field visits. Smaller projects on existing infrastructure affords less discussion. ⢠Our State is a NEPA Assignment State MOU [Memorandum of Understanding]: Part 4. Certifications and Acceptance of Jurisdiction. 4.2 State Commitment of Resources. 4.2.3 When carrying out the requirements of Section 106 of the NHPA, as amended, DOT staff (including consultants) shall comply with 36 CFR 800.2(a) (1). All actions that involve the identification, evaluation, analysis, recording, treatment, monitoring, or disposition of historic properties, or that involve the reporting or documentation of such actions in the form of reports,
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-3 forms, or other records, shall be carried out by or under the direct supervision of a person or persons who meet the Secretary of Interior's Professional Qualifications Standards (published at 48 FR 44738-39, Sept. 29, 1983). The DOT shall ensure that all documentation required under 36 CFR 800. 11 is reviewed and approved by a staff member or consultant who meets the Professional Qualifications Standards. Part 10. Performance Measures. 10.2 Performance Measures 10.2.1 The performance measures applicable to the DOT in carrying out the responsibilities it assumed under this MOU are as follows: Compliance with NEPA and other Federal environmental statutes and regulations: ii. Maintain documented compliance with requirements of all applicable Federal statutes and regulations for which responsibility is assumed (Section 106, Section 7, etc.). D. Increased efficiency and timeliness in completion of NEPA process: ii. Compare time to completion for key interagency consultation formerly requiring FHWA participation (e.g., Section 7 biological opinions, Section 106 resolution of adverse effects) before and after assumption of responsibilities under this MOU. ⢠We do not have federally recognized tribes in our State. ⢠We make sure we include the THPO. ⢠Tribes are contacted early in the NEPA process and information regarding the project is shared, including limits, type of work to be done, etc. Tribal feedback is encouraged at this point, and Tribes are asked if they wish to be consulting parties. ⢠Tribes copied on all cultural resource assessments and asked for input. ⢠Early tribal coordination is an integral part of the Section 106 process for the DOT. ⢠Tribes are notified by FHWA of undertakings that are being developed in counties that the tribes have individually identified as their having ancestral, historical, or ceded land connections. ⢠FHWA Division has a tribal point of contact. ⢠At each stage of the Section 106 process, we consult with tribes and [native] corporations in the particular project area, particularly regarding places of religious and cultural significance. The level of interest and tribal/native corporation participation can vary considerably in different parts of the state and according to the type of project and its potential to affect any such properties [from a state with a large number of tribes and native corporations]. ⢠The DOT notifies Tribes of undertakings via an electronic Project Notification System (PNS). The Tribes who have expressed an interest in the project's county and who have requested password
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-4 access to the PNS will receive an email notifying them that the DOT proposes the action, and the Tribes can enter the system to obtain information about the action and submit comments of what interest they have and if they would like to be consulted. In addition, once a year, the FHWA Division sends to all Tribes who have express interest in State lands the Tribal Consultation MOU we developed in consultation with the Tribes. We request their feedback on the implementation of the MOU, any updates on their contacts and counties of interest, and send a link to the DOT's multi- year and annual listing of all proposed highway projects. 2. Are tribes typically involved in conducting field investigations to identify places of religious and cultural significance? ⢠We have traditional cultural specialists (TCSs) provided by the THPO in the field with our archaeological consultants to complete all on-system (Highway) projects in the State. We have a process defined whereby the archaeological firm calls a THPO from the list we provide, and they line up a TCS for a specific project and fieldwork time. The TCS provides information for identification and they or their THPO can provide information to be included in the reports for the project. For local government and material sources where, cultural resources have been identified a nearby tribe participates in avoidance planning. ⢠Varies in accordance w/ project... may be involved in surveys. ⢠Tribes are always invited to conduct a site visit. We work with Tribes during consultation to identify TCPs and other significant cultural resources. ⢠Tribal representatives do not typically participate in pedestrian archaeological surveys (although, on occasion they do); however, tribal representatives are usually present as tribal monitors/advisors during any archaeological field excavations and/or during construction in culturally/archaeologically sensitive areas. ⢠On a project-by-project basis related to the scope and scale of the project. These investigations have become more commonplace to the DOT in the past 3 or so years. ⢠There are no resident Federally Recognized Tribes in the State. Should a non-resident tribe express interest in participating in the conduct of field investigations we would consider the request with the Tribe and the DOT. ⢠Sometimes. Usually they are involved in the survey when it is on their land. They also participate in field meetings, but these do not happen on all projects. ⢠There are currently no resident tribes in the State. The DOT has a PA that covers the review of Federal aid highway undertakings in the State, including field investigations to identify places of religious and cultural significance. In addition, there is a letter agreement, to be replaced with a tribal protocol (currently being developed), that governs the tribal consultation process in the State.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-5 The DOT provides tribal access to the NEPA process electronic project file system for all NEPA coverage areas including Section 106, to all federally recognized tribes with an interest in [our State]. They are informed with an email whenever a Section 106 activity commences; this includes field investigations. If they would want to be involved in field investigations, they can respond back electronically and let the DOT and FHWA know of their desire to be involved. The tribes have information on NEPA actions and activities available to them at all times. ⢠The FHWA Division, the DOT), the Tribe, and the SHPO executed a PA in 2019 to help expedite the Section 106 Process. The PA provides for compensation to the Tribe for their services provided during Archaeological Surveys-Phases I, II, and III, and during Archaeological Monitoring during construction. The latter has promoted a more active participation of the Tribe in the Section 106 Process. ⢠Depends on the situation. We have done this in the past, especially on sensitive site or discovery situations. ⢠Tribes regularly conduct field investigations on behalf of the DOT. ⢠Tribes are consulted with and requested to provide information on resources with importance to them in the project area. If archaeological investigations are conducted for a project, we will provide tribes the results of the investigations. ⢠We have conducted field reviews with Tribes but that is not typical. ⢠Should potential Native American resources be identified which may be impacted, Native American tribes are consulted with and invited to provide input on any Section 106 documentation and/or participate in field reviews. However, the Tribes rarely provide comments and/or participation as their primary interests/concerns involve Native American burial sites and/or human remains, which are rarely encountered on the projects. ⢠Not routinely. The majority of the projects are smaller maintenance activities - along existing infrastructure. Larger planning projects involving new corridors afford more tribal involvement. ⢠We invite them to participate, but it is up to their discretion. ⢠I do not know about typically. Tribes are involved if something unexpected has been found, or if they have, requested involvement based on early coordination contact. ⢠All but one tribe is out of state, so they do not typically visit project sites. ⢠Tribal monitors are invited to observe archaeological investigations conducted by the DOT archaeological consultants.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-6 ⢠This has not been asked by any of our consulting tribes. ⢠Federally Recognized Tribes usually do not visit project sites in the State. ⢠Due to the variability referenced above, we do not have a response for typical projects. Initial Section 106 consultation invites the tribes/native corporations to identify places of religious and cultural significance in the APE, and next steps proceed from there. In general, this is more focused on communication rather than field investigation. Consultants usually carry out initial cultural resource field surveys, with the opportunity for tribal review of the submitted report during consultation. In some cases, an agency cultural resources specialist coordinates directly with a tribe/native corporation regarding the location of such a site. At each consultation stage there is also an opportunity for tribes to provide additional information and/or additional consultation on of religious and cultural significance. We are beginning to see more Planning Environmental Linkage (PEL) studies, and these may offer additional opportunities for tribal involvement in field investigations. ⢠Tribes are welcome to request site visits when they are interested in an undertaking. We have had a handful of such meetings, but these are not typical. When they do visit, FHWA and the DOT's Chief Archaeologist coordinate the visit with the Tribes, the State Archaeological Survey, and all other appropriate DOT project staff. 3. If tribes are typically involved in conducting field investigations to identify places of religious and cultural significance, how and when are tribes involved? For example, do tribal members conduct the investigations or participate as cultural monitors during the investigation? ⢠Tribal Monitors participate in the surveys when work is within the boundaries of the reservation. ⢠The TCS is either an independent consultant or an employee of the archaeological firm (the latter typically for construction monitoring due to safety concerns - and whereby they are paid less because of the benefits provided). In this manner the DOT gets one report with all resources identified...one approach for avoidance. ⢠Usually as monitors/consultants. ⢠Both. Some Tribes I consult with have people appointed through the Cultural Committee of the Tribe to conduct site visits and people are appointed by the Tribes to conduct site monitoring. ⢠Tribes are typically involved as tribal monitors/advisors in the field during archaeological excavations and/or during construction in areas of cultural resources sensitivity. The unique knowledge and expertise of tribal representatives is sought throughout a cultural resources investigation, but tribes do not typically conduct cultural investigations themselves. Some tribes have indicated an interest in contracting with the Department to provide cultural resources investigation services; however, this has not materialized yet.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-7 ⢠Most requested concern is for an onsite tribal monitor during construction in sensitive areas. ⢠In response to notification about the project, they request the ability to conduct field investigations or field meetings. ⢠THPOs are invited to completed pedestrian survey/testing alongside SOI qualified staff. ⢠Tribal members ascribed to the THPO participate as cultural monitors during the investigation. ⢠Again, it depends on the project, site conditions, or if it was a discovery situation. ⢠Conduct investigations and serve as monitors. Tribal members are hired for excavation projects when appropriate. ⢠Tribal members can participate as cultural monitors during field investigations. ⢠As early as practical during the NEPA process. On some EA or EIS Level projects, the Tribes are invited to participate as a Participating Agency at the project initiation and scoping phase. However, most projects in the state are processed as Categorical Exclusions (CEs) and Tribes invited to participate in the Section 106 review process once preliminary project plans have been developed sufficiently to identify any potential Native American resources and/or impacts. ⢠For some projects, there are ethnographic studies in which the tribes conduct their own studies. Other projects involving data recovery on sensitive sites may result in having cultural monitors. Our State does not typically have tribal monitors during fieldwork. ⢠Tribes are invited to participate as monitors. ⢠We have IGAs with a number of Tribes to provide cultural resources services. Specifically, we have tasks targeted at gathering information for TCPs, HPRCS, etc. This allows Tribes to work on projects within the given areas of interest. There are also provisions to assist with cultural monitoring, etc. Sometimes Tribes will monitor fieldwork performed by archaeological consultants, but this is not a task within the scope of the IGA. They will independently do this, or the firm will hire the tribal staff directly. ⢠We invite them to participate, but it is up to their discretion. ⢠The tribes usually monitor during construction. There are projects, which involve tribes in the initial field investigations, but I am not sure it happens for every project. Tribes are always invited to be consulting parties if the project is within the areas they have told the DOT are of interest to them for cultural resources.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-8 ⢠Generally, the Tribes act as monitors. However, the DOT has asked Tribal representatives to inspect and advise on certain sites. ⢠The THPOs are notified in advance of any archaeological surveys. The THPOs can choose whether to send Tribal Monitors to observe the archaeological surveys. ⢠The DOT has stepped up all communication and consultation with [all tribes]. o The DOT meets quarterly with all tribes going over all the anticipated projects (pre-NEPA and at planning stage) and identified high-level potential 106 issues. o If there is potential for 106 impacts based on initial screening, then the DOT sends a letter identifying the potential archaeological and cultural/religion significance requesting consultation. o Early consultation is also done if projects have financial impacts (e.g., detours impacting casino business). o If Section 106 mitigation is required, then an invitation to participate and opportunity to monitor field investigations is sent. If the tribe(s) want to participate then a MOU for tribal involvement is developed. o In additional to all the above, every other year, the DOT holds an Intergovernmental meeting with the Tribes to address global issues. o On regular projects (w/o 106 potential) the DOT Transportation Service Centers send out letters on all projects with a description of the work so the tribes are aware and can contact them if there is an issue which has been overlooked and needs to be addressed during the plan development. o The DOT has made major steps to include the Tribes throughout planning and project development and into construction. ⢠No processes at this time. ⢠The field visits have been primarily information sharing. Tribes have neither performed nor monitored investigations. 4. Do tribes hire or are they involved in the selection of a consultant to perform this work on behalf of the tribe (i.e., is the consultant someone the tribe knows well and trusts)? ⢠The TCC [Tribal Consultation Committee] has discussed the potential for their involvement in hiring under our contracting system, but for the majority of our projects, the archaeological firm is hired by the engineering firm we hire to do the pre-construction (NEPA) for a given project. However, the processes are well defined for tribal involvement. ⢠There are a limited number of firms (mostly local) that are hired for this work and the Tribes usually have good working relationships with them. That is not to say there have not been complaints. We do have an incident reporting system in place. We have also provided 2 sensitivity trainings for our
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-9 consulting archaeological firms. We are hoping to provide an opportunity for everyone to work together in the field to address issues. ⢠Varies, but usually tribal member or in some cases tribal âstaff.â ⢠Some of the [20+] Tribes I consult with do both in-house consultation and others hire consultants to do Sec. 106 on their behalf. ⢠The state process for competitive bid contracts does not provide for tribes to have a choice in the selection of a cultural resources consultant. This could get complicated if multiple tribal consulting parties wanted different cultural resources contractors. The selection process is primarily based on consultant qualifications and costs. ⢠The DOT asks a tribe to recommend someone. In some instances, a Tribe might complete the investigations. ⢠If the tribe requests a tribal monitor, the tribe typically provides that service. If, an archaeological monitor is requested the DOT will hire the service based on potential recommendations from a tribe. ⢠Only when the tribe is given the fieldwork responsibilities. ⢠No resident tribes currently in the State. ⢠They are not involved in the selection of consultant, though through a cooperative agreement, the consultant is well known to the THPO and the THPO trusts them. ⢠The Tribe performs this work. ⢠Normally it has been with tribal members and staff. ⢠It depends on the Tribe. Some tribes have a robust cultural resource management program and can do many things in-house. Other tribes may need assistance and then would retain the assistance of a consultant. The consultant would be someone known and trusted by the Tribe, especially for ethnographic studies. ⢠We do consult to make sure we honor their concerns. ⢠Tribes do the monitoring or inspection themselves. ⢠The DOT has archaeological consultants under contract to perform surveys. The THPOs have Tribal Monitors to observe the surveys and provide expertise and comments if necessary.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-10 ⢠This has not been asked by any of our consulting tribes. ⢠The DOT has an intergovernmental agreement with the University Research Institute. 5. Do you have an executed Section 106 PA with tribes that establishes how tribal expertise is used in the Section 106 process? ⢠We have a PA on how we will consult on DOT projects. We work as a group to define what the Tribes think needs to be done...how a project needs to be approached and we implement that approach. We worked out a system for including TCSs in the field and it was approved by FHWA and DOT management in the summer of 2007. We have been operating under that approach ever since. ⢠Statewide PA requires consultation, but no agreement specific to tribe. ⢠FHWA and the DOT have a Tribal MOU. ⢠Our agency has a Section 106 PA, which stipulates that the unique knowledge expertise that Indian Tribes possess regarding their ancestral lands will be considered in making determinations and findings. There is no further specification beyond this. ⢠Only one - for use on projects completed within the boundaries of Reservation. ⢠Federally Recognized Tribes have expressed their dislike of PA in the process. ⢠FHWA & the DOT are in beginning stages of consultation on create a PA(s) with interested tribes. ⢠The FHWA Division, the DOT, the Tribe, and the SHPO executed a PA in 2019 to help expedite the Section 106 Process. The PA provides for compensation to the Tribe for their services provided during Archaeological Surveys-Phases I, II, and III, and during Archaeological Monitoring during construction. The PA includes the roles and responsibilities from each one of the signatory parties. ⢠We have invited Tribes to participate in the development of our PA throughout its various iterations but to date no Tribe has signed. We have just initiated an attempt to renew/amend our current PA that runs through 2020. ⢠The DOTâs statewide Section 106 PA allows for agreements with tribes, but none has been executed. ⢠Not an individual Tribe to agency agreement, but we have two tribes that have signed on to our Section 106 PA that streamlines the consultation process.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-11 ⢠The tribes are not signatory to our PA with SHPO, but they were consulted in the development of the agreement. It does not specifically address this question. ⢠We have some Tribal agreements - 4 or 5. ⢠Tribes have generally indicated during our annual meeting that an agreement is not needed or in some cases not desired. ⢠DOT/FHWA have an MOU with several Tribes and are working to get another MOU. ⢠FHWA and the DOT once had 4 executed consultation MOUs with individual tribes and negotiated 4 more that the tribes later did not sign but were treated as if executed. The tribes allowed all of these to expire as they saw no value in these agreement documents. ⢠After workshops with the Tribes in 2008 and 2009, we have an MOU with Tribes, FHWA, SHPO, and the DOT ratified in 2011 (6 Tribes have signed), stipulating the tribal consultation process for state transportation projects. 6. Are tribes financially compensated for participating in the Section 106 process (e.g., for conducting surveys to identify places of religious and cultural significance)? ⢠Tribes are compensated when participating in Section 106 consultation; however, that does not currently include conducting surveys. ⢠The TCSs are given money up front to cover mileage and per diem. Lodging is provided. They are paid a salary of $50/hour when they are operating as an independent consultant, but $25/hour when we need them to be employees of the archaeological consultant for safety/liability issues, e.g. during construction monitoring. ⢠Sometimes. Paid monitors when used. ⢠Tribes are not compensated for consulting with the Department, but as an outcome of the consultation process, it may be concluded that tribal monitoring is necessary. If so, tribal monitors are compensated for their time. ⢠If they are under contract to complete certain tasks. Not for Section 106 consultation. ⢠If requested to perform a specific service under Section 106 (i.e., survey) the tribe would be compensated. ⢠If asked for comments or to be involved in Section 106 consultation the tribe is not compensated for their efforts.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-12 ⢠Sometimes, not often though; considered upon request. ⢠No resident tribes currently in our State. ⢠The PA provides for compensation to the Tribe for their services provided during Archaeological Surveys-Phases I, II, and III, and during Archaeological Monitoring during construction. ⢠We have paid for travel costs, lodging, etc. but not salaries. Comes out of project costs. ⢠Participation by Tribes has been very limited since I have been involved with the Federal aid Program in the State (18 years). The FHWA Division and the DOT would consider participating in eligible costs associated with completing Section 106 reviews but cannot recall it being required and/or requested to date. ⢠For work as a monitor, but not as consultant to address responses for consultation letters. ⢠Again, we have IGAs with a number of Tribes to compensate for certain services. ⢠Tribes are reimbursed for travel, meals, hotel, etc. ⢠However, the costs are paid to attend the annual consultation meeting. ⢠The MOU with the Tribe set up a mechanism to compensate the Tribal Monitor for monitoring during an archaeological survey. Another Tribe declined to be compensated for any archaeological monitoring. Without an executed MOU, the DOT does not currently have a mechanism to compensate the Tribal Monitors. ⢠Unless the tribes are providing a service beyond routine Section 106 consultation and preforming a task that a consultant might do; then they are financially compensated for their efforts. ⢠If there is a survey or specialist contract during Section 106 identification or tribal monitors during construction, those contracted items are compensated. General participation in the Section 106 process is not compensated. 7. If tribes are compensated for participating in the Section 106 process, how are they financially compensated and by whom? ⢠They send in an invoice for their fees, time, and travel. ⢠Compensated by the DOT using funds from specific projects.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-13 ⢠The archaeological firm pays the TCS or Tribe (depending upon whether the TCS is an employee of the tribe or operating essentially as an independent consultant) the salary. They provide money up front to cover expenses, which allows the TCS to have money during the fieldwork. ⢠The state DOT provides a small honorarium. ⢠Through direct payment (contract) or via consultant as âsub.â ⢠Tribes are typically compensated for tribal monitoring efforts only. The most common method for compensating tribal monitors is for the individual monitor to become a temporary employee of the Department's cultural resources consultant. In some cases, tribes can become subconsultants to the Department's cultural consultant, in which case the consultant reimburses the tribe, who then reimburses the monitor. In rare circumstances, a tribe may be able to contract with the state, but it requires a waiver of sovereign immunity. ⢠Through project funds (i.e., FHWA federal participation). ⢠The DOT has a couple options for contracting with tribes, such as intergovernmental agreements or small purchase orders. ⢠By the DOT. ⢠They are financially compensated if tribal monitoring is required. ⢠Payment to Tribe for their involvement in Archaeological Surveys-Phases I, II, and III, and during Archaeological Monitoring during construction are made by the DOT. The latter is eligible for federal aid reimbursement. ⢠They receive a check from the Dept. of Transportation or from the term contractor hired for the project. ⢠If ever warranted/applicable, the tribes would be reimbursed by the DOT for any reasonable, eligible costs and, FHWA would subsequently reimburse the DOT. ⢠We have an IGA but most of the time the compensation is paid through a third party such as the consultant or contractor. ⢠Typically paid per monitor, per day, either by the State or by a contractor depending on phase of project. ⢠Via the DOT.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-14 ⢠In certain circumstances, there are project funds used to pay for tribal monitoring. Sometimes tribal staff with the right expertise are hired to conduct cultural resource studies. ⢠They are compensated by the DOT, upon presentation of a voucher. Our DOT does not utilize federal funds for this. ⢠Tribal Monitors are compensated through the DOTâs archaeological consultant contracts as a condition of the fully executed MOU between FHWA/DOT and the Tribe. The Tribe sends an invoice to the DOT's archaeological consultants for payment for monitoring hours and mileage. Funds to compensate a Tribal Monitor are included in the scope/budget of every archaeological survey assignment. ⢠When the tribes are financially compensated, it is done through a contractual agreement with the DOT. ⢠Contracts are handled through normal contracting processes for federal aid projects, with project funding from FHWA; however, general participation in Section 106 consultation is not compensated. 8. Is tribal cultural expertise used in decision-making associated with the early transportation planning process (e.g., for programmed projects, prior to the beginning of NEPA and Section 106 reviews)? That is, are tribal historic preservation or cultural staff involved in early transportation planning? ⢠The DOT consults with Tribal Transportation personnel in planning the STIP each year. Tribal transportation personnel rarely work in concert with their THPOs. Note, however, as soon as something shows up the in the STIP - 4 years out, we are consulting on it with our Tribal partners. As I understand, different DOTs handle projects differently. There would be very little need for THPO involvement prior to a project being in the STIP...in our state, we are primarily working to improve existing highways, not creating new ones. During the oil boom, we had numerous city bypass projects and our TCC was involved as early as anyone was in planning these routes and approaches. ⢠Planning branch has NA liaisons. ⢠Tribes receive a Section 106 Early Coordination Letter notifying them of a proposed undertaking prior to aboveground and archaeological studies so that they can inform us of any archaeological or religious sites prior to fieldwork. ⢠This is something that our Department is actively seeking to achieve. We have received a grant to do a pilot effort to implement FHWAâs Planning Environmental Linkages initiative to enable cultural resources technical staff to engage in the early transportation planning process to address tribal concerns about potential effects to resources in the early planning stages. It is hoped this early
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-15 engagement will help promote avoidance of important resources and ultimately provide for a more streamlined project delivery process. ⢠The Planning Partners in the Commonwealth reach out on an annual basis to offer the opportunity for Federally Recognized Tribes to participate in the transportation Planning Process. Since this is not a FHWA responsibility, I do not know if any have offered insights or opinions during that process, but I suspect not. ⢠Project notification letters are sent out prior conducting Section 106 identifications. ⢠They participate in planning level NEPA projects but not as much in the traditional planning process. ⢠The tribes are welcome to provide comments at any time during the project development process, including during Planning and prior to NEPA. ⢠For projects located within the exterior boundaries of a reservation, we initiate consultation with the tribe under Section 106 and under NEPA as soon as the project is programmed. ⢠Not at this point, although it is something that has been requested by the Tribe. FHWA, the DOT, and the Tribe meet monthly to discuss future projects coming down the pipeline. Currently, the FHWA and the DOT are looking for to provide more opportunities to the tribe during the early stages of the Project Development Process. ⢠Sometimes. ⢠Tribal historic preservation staff are coordinated with during the early transportation planning process. ⢠Yes, on some projects and programs Tribes have been contacted to see what type of program information they would like to receive prior to any Section 106 related investigations. ⢠The State utilizes an extensive public involvement process in developing their Long-Range Transportation Plans and, 4-year STIP, which is open and transparent. However, as there are no Tribal Lands in the state, it is doubtful that any specific outreach to Federally Recognized Tribes who live outside of the state is presently completed as part of this process. If/when any Section 106 PAs with Tribes are advanced, a formal process would be utilized to involve the Tribes early during the transportation planning process and identify specific projects of interest/concern, which the Tribes may wish to participate in during the Section 106 and/or Project Development process. ⢠Large projects that have years to develop have the most opportunities to involve tribes in a meaningful way, as decisions have not yet been completed about different alternatives.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-16 ⢠Tribes are invited to participate in PEL studies, as appropriate, and are engaged as early as possible in project design. ⢠The DOT has kicked off a new effort to get Tribes involved earlier. ⢠Yes and no. The DOT invites them. They do not always participate, but we have had some projects where they have participated in early stages of planning/NEPA for a project. ⢠Tribes are not typically contacted until NEPA has started, however our state begins NEPA early on, and âshowstoppersâ can be identified early on. ⢠Typically, for most projects tribal coordination under Section 106 begins when project plans are developed. The DOT will coordinate with the Tribes as early in the process as possible. Tribal concerns are important especially when multiple alternatives are under consideration. ⢠The DOT sends an email with links to the draft STIP and instructions on how best to use this information every year to the tribes for comments. Links to access the STIP is also posted on the DOT tribal consultation web page year-round. ⢠Our group is not involved in that aspect of transportation planning. There may also be variations depending on whether the funding is FHWA Division (Federal Aid Highway) or FHWA Western Federal Lands (IRR/Tribal Transportation program). ⢠Their primary opportunity to see projects in the early stages is the multi-year program and annual program listing of upcoming projects. TRIBAL RESPONSES 1. Is your tribeâs cultural expertise used in state DOT decision-making associated with early project planning (i.e., prior to initiating Section 106 compliance or NEPA reviews)? That is, are tribal historic preservation or cultural staff involved in early transportation planning? An example would be a state DOT consulting with your tribeâs historic preservation staff about projects in the STIP. ⢠The DOT does not contact us until NEPA or Section 106 consultation. ⢠We meet monthly with the DOT to discuss projects upcoming. ⢠We have interest in 12 states and two send us early project notifications. Most do not. ⢠Some state DOTs send me a copy of the STIP each year with the opportunity to comment at that stage. The number of projects in the STIP is more than I can review at that time, so I generally do not comment.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-17 ⢠It depends what you mean by early. We know about it when they have decided to do something but are not really involved in the decision process on whether something should be done. ⢠We receive project information early in planning stage for some, but not all states. We do not receive information from one state for example, but we do from others. ⢠Only for a portion of the projectâs APE, they refuse to include us in the borrow pit areas. ⢠Tribes are provided opportunities to participate in long-range planning, like other state and regional stakeholders. However, little of what is shared in these forums is reflected in the final plan documents nor is much, if anything, altered with regard to policies and processes that tribes indicate as outmoded, ineffective, culturally inappropriate, etc. ⢠Due to funding, we only see projects with funding that will happen soon. In Oklahoma, we get projects in advance and they do work with us to address all concerns written in Section 106 correspondences. ⢠1. Yes on major transportation improvement projects. 2. Archaeological review seems to be done during permitting process rather than prior to initial design on most restoration projects. ⢠Quite a few years back we had great consultation with the DOT. That is not happening now. ⢠The tribe does not currently have historic preservation staff but is seeking funding to set up a THPO department in order to increase this capacity and we would like to be involved in early project planning. ⢠The DOT has not formulated an early participation plan for highway infrastructure projects. Communication is limited to only those projects that directly affect reservation roads/highways. ⢠The THPO conducts review of the proposed project. ⢠We meet with the DOT twice a year and we are contacted prior to road construction on, or adjacent to the reservation. 2. During the development of a project (i.e., during the NEPA and Section 106 review process), do state DOTs and FHWA rely on your tribeâs expertise to identify places of religious and cultural significance to your tribe, assess effects to these places, and resolve any adverse effects to these places? ⢠They consult with the Affiliated Tribes, however, our request to monitor off the reservation is always denied.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-18 ⢠When we insist but see above on timing. Usually the decision to do something has already been made. ⢠In some but not all states. ⢠Only on our reservation lands. ⢠The two DOT Districts with which the Tribe consults do indeed reach out to the tribe to identify historic properties and they do engage with the tribe in discussions about effects. There are still struggles with DOTs understanding the applicability of Criteria A-C to archaeological resources and their potential significance to tribal communities, however. We also struggle with PAs being overusedâthey often âkick the can down the roadâ with regard to proper identification and some entities fail to understand when it is appropriate to use a PA and when the use of one actually undermines the Section 106 identification effort to the point of regulatory non-compliance. There is also still a struggle to have indirect and cumulative effects fully assessed and addressed. Finally, there remain challenges in having DOTs understand that mitigation need not be archaeological data recovery and that such mitigation does damage in its own right. Collection and curation practices that are a natural result of this type of mitigation are also deeply problematic. ⢠Yes, if we bring up a concern in our letters the DOTs will work with us to address the concerns. ⢠Case in point, FHWA/DOT [. . .] approved a bridge project via a CE after segmenting the undertaking (resulting in impermissible segmentation within the NEPA process). This segmentation resulted in another agency, in this case, the U.S. Fish and Wildlife, had the burden of conducting and completing the NEPA and Section 106 processes. ⢠We are afforded opportunity to comment and review documents related transportation projects. There is a short fall of resources to accommodate the volume of reviews. There needs to be budgeted appropriations built into transportation bills that supports Tribal Section 106 review. ⢠Although it is very difficult for them to understand our views and how to work around our concerns. ⢠We would like to be involved and are increasing our capacity to do so. ⢠Only on those projects as stated in Question 1 above where the proposed project is affecting reservation highways and roads. At that time, the DOT contacts the Tribal Historic Preservation Office for concerns or to arrange consultation on the specific project. ⢠Review by the THPO.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-19 3. Is your tribe typically involved in conducting field investigations to identify places of religious and cultural significance to your tribe? ⢠Not as often as we would like. ⢠Often this has already taken place, as there is a reliance on old/outdated survey information. The Tribe is always will to assist in this but has been inconsistently compensated for this process. ⢠We have tribal monitors based on availability. In addition, THPO staff reviews field methodology, methods, etc. ⢠Only in projects that are in sensitive areas for our Tribe. ⢠It is a rare occurrence. ⢠The Tribe is not actively engaged in the Phase I or extended Phase I field effort, as these efforts are often either completed, underway, or already contracted by the time the Tribe is notified of the proposed undertaking. Should the fieldwork require Phase II or Phase III work, then the Tribe may engage in that effort, if the community is aware of culturally significant and sensitive spaces within the APE or the high probability for undisturbed native soils in archaeologically sensitive spaces. The Tribe also does conduct field visits as a routine part of their consultation process, should physical inspection of a space allow the Tribe to better and more fully speak to resource-based and landscape-based concerns. ⢠Not when it comes to FHWA, Section 106 consultation is typically late in the process where decisions have already been made or designs initiated where FHWA is hesitant or resistant to avoiding TCPs or take into account anything the tribe identifies or has concerns about. They are more willing to just âmitigate the effectsâ instead of avoidance or minimization. Some states and FHWA offices are better than others are, but there appears to be an inherent lack of early engagement with the tribes during the actual planning of projects. ⢠1. As needed and based on resources at the time required; not often due to limited staffing resources. 2. Again, supplemental funding built into transportation bills would help with staffing needs to accommodate the demands of Section 106. ⢠On projects that we are aware of and/or projects that we choose to participate on. ⢠However, when we state this, we get lots of kick back and the run around to set up a date/time. If your region has a tribal liaison, which we do it does make it easier. ⢠As THPO for the Tribe and Cultural Resource person, I am actively involved in field investigations that are within our Cultural Resource Protection Zone and areas that we already know are sensitive.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-20 ⢠Many of these places have been previously identified. However, archaeological representatives of the Tribe will occasionally visit areas of concern/interest, or project areas near or within known cultural sites. ⢠We would like to and we have someone who has begun the training and a staff member with experience in archaeology. ⢠We primarily work with the DOT if there is a possibility that a site or sites may be identified to be of cultural significance. ⢠Involved as participants to the contract archaeological firm or archaeologist. 4. If your tribe is involved in conducting field investigations to identify places of religious and cultural significance, how and when is your tribe involved? For example, do tribal members conduct the investigations or do tribal members participate as cultural monitors during the investigation? ⢠We conduct the investigations. ⢠Tribal members monitor activities and perform interview to inform research. ⢠Both. ⢠Cultural monitors and review of methods by consultant services. ⢠Our THPO office conducts archaeological surveys for our tribe. Tribal citizens under the direction of an RPA Tribal Archaeologist do the work. ⢠We seldom conduct investigations. We are more likely to provide a monitor. ⢠As a rule, we are the only entity that identifies HPRCSITs for our tribe. Outsiders are generally not permitted to interview our elders. ⢠We do not get to be involved in the investigations and in rare instances they let us monitor the area before they do the construction. That is a rare case. ⢠[ . .] the Tribe has cultural monitors assigned to archaeological investigations where monitoring is deemed necessary (typically where an undertaking is to occur in a sensitive location or when the presence of an archaeological resource is known and the agency will not/cannot avoid it). When the Tribe conducts field visits as a part of the tribal consultation process, the individuals in the field are the Tribe's CRM staff, who are archaeologists in their own right.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-21 ⢠Typically, tribal cultural monitors are only included if specified within a PA or other agreement document. This also goes for any type of ethnographic or field investigations for a project, included as âmitigationâ and not during the data collection phase. When cultural resource field investigations are conducted, they are usually completed prior to the tribe being made aware of the project or does the agency or the consultant reach out to the tribe to include their participation in these studies. ⢠Typically as part of warranted archaeological investigations. ⢠THPO conducts Phase IA desktop reviews on all project proposals and offers determinations and findings. Sometimes these findings will require further archaeological investigations in which we will monitor as long as resources allow. ⢠Usually involved when the archaeologists are ready to head to the field. TCS are involved in class III surveys to assist archaeologists. Project timeframes vary. Some are a dayâs notification before, whereas other projects are spoken of years, months ahead of time. ⢠Participation as cultural monitors. ⢠We try to get a site visit after the initial letter or after the first consultation meeting. This done by office staff and monitors are employed by the Tribe. ⢠THPO is involved, if particular areas are sensitive and I need more information, I have Elders who I can consult with. Some of my Elders used to be able to go in the field with me; however, they are Elder Elders. I am an Elder, but I have Elders older and wiser than me. We do not have any NA Monitors to go on site, other than myself. I have been with the Tribe for a long time and know where to look and how to get more information and what to look for. ⢠Tribal members and representatives conduct field investigations using ethnographic report and recent investigation reports. If the Tribe has issues with a consulting archaeological report, the Tribe may request the Tribal Historic and Cultural Resource Department to reassess sites. If areas or project site is identified as sensitive, the Tribe will request to participate as cultural monitors. ⢠The Tribe would like to be involved in the entire process and has a cultural monitor in training to be able to participate in the investigations. ⢠It depends on the project. Sometimes we only survey, sometimes we only monitor, or sometimes we do both. ⢠We are involved to the degree that a project is affecting directly reservation roads and or highways and have the potential to go beyond the current right of way fence lines and into Indian administered/owned lands.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-22 ⢠Unless there is a Tribal archaeologist who meets the Secretary of Interior Standards conducting the investigation, Tribes are participants to the study. 5. Or does your tribe hire or are you involved in the selection of a consultant to perform this work on behalf of the tribe (i.e., is the consultant someone the tribe knows well and trusts)? ⢠Depends on the case. Sometimes we do it; sometimes it is contracted out. ⢠The tribe has a contracted archaeologist. ⢠We have never been asked for our opinion on the consultant used by [the State DOT] or FHWA. ⢠Both, we use internal and external. ⢠Our tribe is not involved in the selection of consultants. ⢠DOTs pick the consultants. ⢠When Tribal staff conduct field visits/meetings, their work is performed as a part of their staff duties, which is wholly paid by the Tribe. When a cultural monitor is needed, the Tribe supplies the names of tribally vetted and approved independent contractors (at this juncture, all of whom are Native American) that supply monitoring services on behalf of the Tribe. The agency or entity hiring the cultural monitor contracts with that individual directly, but that individual represents the interests and concerns of the Tribe. ⢠When ethnographic work is called for, we specify a trusted ethnographer as part of the agreement document. Cultural Resource consultants conducting the initial and any follow-up surveys are hired by the proponent or agency without any input from the tribe, and tribal participation in these surveys is after the fact or as field trips. ⢠The Tribe does not hire the consultants; we participate by monitoring the archaeological investigations typically done by a contractual consulting firm selected by the state agency. ⢠Our Tribe has one consultant that conducts the surveys, with our TCS, on one project within our reservation borders. The THPO recommended the consultant due to previous successful collaborative projects. Off reservation, projects are result of agencies hiring consultants. ⢠NO 'consultant' should EVER be allowed to do cultural surveys in lieu of cultural Monitors from a federally recognized tribe PERIOD. ⢠THPO's office has a contract with a Qualified Archaeologist; however, the THPO budget is super limited. We have the Archaeologist do work on Tribal lands in a limited capacity. However, no we do not have an Archaeologist hired to go in the field with agencies and private contractors. As time
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-23 is allowed, THPO goes with the lead agencies and private contractors, especially areas of critical concern. The Tribe does not have the budget for hiring more cultural resource personnel. ⢠The Tribe works with local archaeologists. ⢠The Tribe in the future may also hire a consultant to assist in the process. ⢠We are not actively involved in the process of selection of contractors or firms conducting archaeological survey research and work. ⢠Only recommendation can be submitted for selection of the archaeological firm. ⢠We are not involved in the hiring of the archeology firms. 6. Do you have an executed Section 106 PA with FHWA and/or a state DOT that establishes how your tribeâs expertise will be used in carrying out the Section 106 process? ⢠If we do, it is probably outdated and was completed from the last THPO representative. ⢠In progress in the state. ⢠We have an MOU with the DOT and had the opportunity to sign an MOU with another DOT. We have no agreements with the DOT in other states of interest to my tribe. ⢠The FHWA refuses to enter into a PA with the Tribal Nation. ⢠And I do not know why one would use a PA as the vehicle for such an agreement. A MOU perhaps, but not a PA. (We also do not have a MOU with the FHWA or DOT for this purpose). ⢠This is a need that has to be addressed. ⢠There is no PA that exists between Tribes and the DOT. ⢠Leaders of such Nations should execute documents between Nations. Many PAs include the State Historic Preservation Officers on the front page and don't include Tribal Presidents/ Chairâs secondary. This is disrespectful to a Nationâs leader. 7. Is your tribe financially compensated for participation in the Section 106 process, such as conducting surveys to identify places of religious and cultural significance? ⢠Employees are compensated for their time working for the tribe, however the Tribes are often not compensated for time spent researching a project, getting materials together for consultation meetings, consultations, travel and time for Site Visits and most work done prior to ground
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-24 disturbing activities on a project. Tribes are compensated for Cultural Monitoring, so there is an uneven push for tribes to approve projects so they can be compensated. This later places tribes in an adversarial position when there are inadvertent discoveries at a project site. ⢠We have not done surveys for DOTs but we are working on tribal monitoring logistics with the DOT. ⢠Sometimes. If we have made it clear that such a survey is needed, we are compensated for doing it. It is not done as a matter of course. ⢠The Tribe does not charge a fee for its participation in the Section 106 process. That said, we have also not been asked to perform services that would otherwise necessitate the hire of a consultant. Should that occur in the future, compensation might be a topic for discussion. ⢠We are compensated to attend annual consultation meetings. ⢠When monitoring is required, the tribe is compensated at that time for in field participation. Not for phase IA desktop review of the projects. ⢠For some surveys yes, all depends on the agency...most of the time we are not compensated. ⢠Not at this point, but as we are increasing our capacity and expertise it will be important for us to be in the future. ⢠We are not compensated; however, I believe Tribes should be compensated for their services. ⢠As yet, no, in the State. ⢠Not specifically the Tribe but the individual sent to conduct the survey. ⢠Our monitors and surveyors are paid. 8. If your tribe is compensated for participating in the Section 106 process, how are you financially compensated and by whom? ⢠We enter into contracts and grants, perform work, invoice on a cost-reimbursable basis.
Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources A-25 ⢠Travel expenses (flight, lodging, per diem). ⢠We are compensated by the DOT, only to do the inventory of historic properties. Our time spent on consultation is not covered. ⢠Depends on the state. [In] some states it is their FHWA others contract it out to an agency where they reimburse us and in turn are reimbursed by FHWA. The advantage of an outside source is this sometimes allows the DOT to come to a tribe to consult (which is usually at one of the tribeâs casinos due to it being the largest meeting space and hotel available). ⢠Typically through a contractual agreement executed through a preapproved purchase order. ⢠By check, through the agency hosting, or their consultant. ⢠106 meeting there is no compensation. Extra items we do request compensation such as surveys and reports. ⢠We are not involved yet in any projects in the State or with DOT. ⢠The archaeological firm compensates the individual NOT the Tribe. ⢠The archeology firms pay our monitors and surveyors.
