Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources (2020)

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Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 7 4.0 RESULTS OF ONLINE SURVEY 4.1 INTRODUCTION A critical element of the NCHRP Task 114 study is exploring how the FHWA and state DOTs consider tribal expertise during all steps in the Section 106 process. Another critical element of this study is to document tribal perspectives on how well FHWA and state DOTs consider tribal expertise during the steps in the Section 106 process. To assist in addressing these elements of the study, the project team created an online questionnaire through Google Forms for state DOTs and FHWA division offices and another for tribes. The online survey was opened on May 13, 2019. An initial reminder was sent out on May 17, 2019, with a second reminder sent on May 29, 2019. The first reporting of the online survey results was taken on May 31, 2019, at which time the project team had heard from 22 state DOTs, 17 FHWA division offices, and 18 tribes online. To provide additional time for outreach to tribes, the project team left the online survey open until October 16, 2019, and, with the support of the NCHRP Task 114 panel, made several efforts until the survey closed to solicit online survey participation. At the time of closure, 23 state DOTs, 18 FHWA division offices, and 31 tribal respondents had participated in the online survey. The following reporting of the online survey results includes all responses received by October 16, 2019, when the survey was closed to further responses. Each of the online survey questions is reviewed below. Depending on the question, a respondent was prompted to provide a “Yes” or “No” response and offered the opportunity to “Explain” by providing additional written input. Some questions only required written input with no “Yes” or “No” required. Some respondents elected not to choose a “Yes” or “No” response when prompted and only offered written text. Other respondents chose not to offer responses to questions. The comments submitted in the “Explain” section provided for each question are provided in Appendix A. The respondents were generous with their comments. To maintain response integrity, the written responses provided in Appendix A have been only lightly edited (e.g., obscuring names, removing extra spacing, and correcting misspellings to improve readability). 4.2 SUMMARY OF ONLINE SURVEY RESULTS 4.2.1 STATE DOTS AND FHWA DIVISION OFFICES As noted above, the project team received online survey responses from 23 state DOTs and 18 FHWA division offices. Figure 1 (at the end of the section) shows the geographical representation of the respondents. Each of the online survey questions is discussed below, including comments submitted in the “Explain” sections provided for each question. 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? Of the responses received, 80 percent (n=33) were “Yes,” and 20 percent (n=8) were “Explain” wherein the respondent offered a written response only.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 8 No written responses were negative but rather provided more detail on the nature of the agency-tribal relationship or how the information provided by tribes was considered, if at all, by the agency. Comments included identifying their coordination with tribes as letting them know about a project just as they would a SHPO or other consulting parties, not receiving additional information about historic properties from the tribes in response to the initial outreach or follow-up questions, only consulting with tribes on a project-by-project basis, expanding the consultation process if requested by the tribes, and some states having or creating a more formal tribal consultation protocol developed in consultation with tribes. Some states mentioned providing opportunity for tribal engagement in the field and including them on technical reporting review, and it was mentioned in several instances that outreach could be variable depending on the size of the undertaking or if the project is on or near tribal reservations. 2. Are tribes typically involved in conducting field investigations to identify places of religious and cultural significance? Forty-one percent (n=17) of the respondents answered “No” to tribal involvement in field investigations, and 32 percent (n=13) answered “Yes.” The remaining respondents offered an explanation (20 percent; n=8), were not sure (5 percent; n=2) or did not provide an answer (2 percent; n=1). According to those who responded positively to this question, some programs for tribal field involvement are well developed and include active tribal involvement on all projects. Some consist of variable involvement and are limited to field meetings, site visits, or participation depending on scale/scope of the project. For some, tribal involvement occurs only on projects on the reservation, or is limited to monitoring during fieldwork conducted by others or during construction, or is not routine or typical, or is at tribal discretion, or occurs only if something is identified. In general, tribes are clearly welcome to participate should they take the initiative, and the level of involvement and interest varies greatly. 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? The responses suggest that although tribal involvement is encouraged, there is a wide range in how that involvement translates into practice. Sometimes tribes are hired directly to complete surveys, or the consulting firm hires the tribe. Some DOTs leave it to tribal discretion if they want to be involved, or there are no processes for tribal field involvement. It appears that the preferred form of involvement is using tribal monitors for projects both on and off reservations for field investigations and construction. In some instances, one collaborative report is prepared involving both consultants and tribes so that one approach to avoidance is presented to the DOT. In other cases, tribes are invited to complete a pedestrian survey in conjunction with the consulting team but there is no discussion of how what the tribe learns is reported for informed decision-making. 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)?

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 9 Based on the submitted responses, tribes will perform this work themselves in-house or, in instances that are more infrequent, will hire a consultant to do the work. Rarely are they directly involved in the selection of a consultant by a DOT, but their preferences are made known to the DOT because of the desire to have a firm with which they have a good working relationship. One DOT mentioned the use of sensitivity training to maintain a respectful working environment; the project team has also seen this approach used in non-transportation projects. 5. Do you have an executed Section 106 programmatic agreement with tribes that establishes how tribal expertise is used in the Section 106 process? Fifty-six percent (n=23) of respondents do not have an executed PA with tribes, and 29 percent (n=12) indicate that they do. The remaining 15 percent was split equally at 5 percent (n=2) each in offering an explanation only, they were not sure, or left the response blank. For those that indicated they have a PA, the PAs are not executed directly with tribes except in limited circumstances but rather the respondents are referencing that tribal interests are reflected in their PA. Most noted that although tribes played a role in the PA development, they chose not to sign. One comment noted that agreements had been negotiated with tribes, but when they expired, there was no desire to move forward as the tribes saw no value in the agreements. In another instance, it was suggested that tribes “dislike” PAs. In yet another instance, such agreements are in place with tribes in the state. In summary, it appears that there is somewhat limited use of PAs to establish how tribal expertise is used in the Section 106 process, and instead DOTs rely on their existing PAs to address tribal participation but do not define how the knowledge gleaned informs decision-making. The project team believes that those respondents suggesting that there are PAs are answering in the affirmative because they are equating existing PAs that address tribal consultation to an agreement with the tribe. 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)? Nearly a quarter (22 percent; n=9) of respondents answered that they were compensated, 37 percent (n=15) are not, and 12 percent (n=5) are not sure. Seven percent (n=3) left the question blank, and 22 percent (n=9) offered an explanation only. The written responses associated with this question exhibited tremendous variation, and it would be interesting to find out more about the factors driving such widely divergent approaches to financial compensation to tribes. At some DOTs, tribes are compensated when participating in Section 106 consultation, but that does not currently include conducting surveys. For others, it is the reverse, or only considered on request and in specific situations. In some states, the tribes are paid for their participation in advance and this includes other direct costs, such as travel, meals, and lodging. Other states may reimburse for costs incurred but not provide compensation for labor. One tribe did not wish to be compensated for monitoring.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 10 7. If tribes are compensated for participating in the Section 106 process, how are they financially compensated and by whom? The process for compensating tribes varies. Either the DOT reimburses the tribe directly through the financial mechanisms the agency has in place (e.g., via invoice, honorarium, or subcontract) or the tribe is reimbursed through the consulting firm. 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? Almost half (42 percent; n=17) of the respondents answered in the affirmative, and 24 percent (n=10) replied in the negative. Seventeen percent (n=7) of the respondents were not sure, two left the answer blank, and 15 percent (n=6) offered an explanation only. In general, the responses suggest some variety in how much outreach is extended to tribes, the form of the outreach, and at what stage in the planning process it occurs. Some DOTs have efforts underway to improve the process. For others, it is a key component of planning the STIP each year. In a few instances, the outreach appears to be confined to sending a notification letter to the tribes or the suggestion that the tribes are welcome to play a role in the process but with no indication of how this will be accomplished. Various departments may be involved with tribes at different stages in the process, but there was no indication of how this involvement and knowledge was shared across departments to link the engagement efforts.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 11 FIGURE 1: Geographical Representation, Respondents from State DOTs and FHWA Division Offices

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 12 4.2.2 TRIBES Over the course of the project, the project team received online survey responses from 31 tribal respondents. Using the location of the tribal office (when known), Figure 2 (at the end of the section) shows the geographical representation of the tribal respondents. Each of the online survey questions is discussed below, including comments submitted in the “Explain” sections provided for each question. 1. Is your tribe’s 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 tribe’s historic preservation staff about projects in the STIP. Nearly half of the respondents (48 percent; n=14) answered “Yes” to this question, and 23 percent answered “No.” An additional 26 percent (n=8), chose to “Explain,” and (3 percent; n=1) was not sure. Responses showed variability in the degree to which tribes are engaged in the planning process. Some tribes meet with agency staff about project planning with regular frequency, but many times contact occurs only when there is project-specific compliance. Some state agencies consult early, but the respondents noted that most are not. A tremendous burden is placed on THPO staffs with the volume of projects that are shared with them for review, and this volume may lead to tribes not commenting at all. Other respondents lamented that there is little involvement in any of the decision points along the project development process. Some tribes noted that although they may share information, they do not see the results of that consultation reflected in the final plans. 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 tribe’s 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? Of those responding to this question, nearly two-thirds (65 percent; n=20) responded “Yes,” and only 13 percent (n=4) responded “No.” Seventeen percent chose “Explain,” 3 percent (n=1) was “Not Sure,” and another respondent (3 percent) left the response field blank. Respondents noted that some state agencies seek their input and that others may not, their input may be sought only on their reservation lands, and that outreach can occur after the decision to do something has already been made. One respondent pointed to a concern that PAs are being overused, leading to a failure to identify resources until very late in the process. In those examples where consultation occurs and there is engagement on effects, some respondents did note difficulty with the agency understanding the significance of the identified resources to tribal communities: “… it is very difficult for them to understand our views and how to work around our concerns.”

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 13 3. Is your tribe typically involved in conducting field investigations to identify places of religious and cultural significance to your tribe? The responses to this question were somewhat evenly distributed among “Yes” we are involved at 42 percent (n=13), “No” we are not at 32 percent (n=10), and 26 percent (n=8) who chose to “Explain” rather than provide a yes or no answer. Tribal respondents noted that they are not involved in fieldwork as often as they would like, one noted it can be a rare occurrence, and another stated that they are involved only in projects located in areas sensitive for the tribes. Sometimes the fieldwork has already taken place and such work shows a reliance on outdated survey information. The tribes are always willing to assist but there have been difficulties in obtaining compensation for the tribes’ work. One respondent noted that for some transportation agencies and projects (but not all), consultation comes late in the process after decisions have been made and there is limited ability to refine designs leading to mitigation efforts as opposed to avoidance or minimization. The respondent advocated for more reliance on early engagement with tribes so that project planning can benefit from the consultative process. 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? Tribal respondents want to be involved in field investigations, but there is variable participation associated with project timing, tribal notifications, and financial considerations. Many tribes conduct the investigations, perform monitoring activities, hold interviews with elders, and review work completed by others. Some tribes are not provided the opportunity to be involved and consider themselves fortunate if they are able to participate in monitoring alone. 5. 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)? Two-thirds (65 percent; n=20) of the respondents noted that they are not involved in hiring or selecting the consultants to do any of the required fieldwork, and only 6 percent (n=2) do have that ability. Almost a third (29 percent; n=9) chose the “Explain” field. According to the tribal respondents, much depends on the overall project situation and the financial resources. Sometimes the tribe performs the work, but in other situations, the work is contracted out. Most of the respondents suggested that they have established relationships with archaeologists but that there is a reliance on tribal staff to conduct the field visits, attend consultation meetings, perform the monitoring, etc. Monitors may be independent contractors but they are typically Native American and have been vetted by the tribe so there is an established relationship. Tribes may be able to request a trusted ethnographer if there is an agreement document giving them the ability to specify, but

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 14 sometimes follow-up ethnographic surveys are conducted by another consultant hired by the agency. One tribe was emphatic that no surveys should be undertaken without a tribal monitor. 6. Do you have an executed Section 106 programmatic agreement with FHWA and/or a state DOT that establishes how your tribe’s expertise will be used in carrying out the Section 106 process? Most of the responses indicated that the tribes do not have an executed PA (58 percent; n=18). Twenty- six percent of respondents (n=8) indicated that they did have an agreement, and 13 percent (n=4) were not sure. Only 3 percent (n=1) chose “Explain.” Some respondents were unclear as to whether any agreement they might have was still in force or noted that an agreement is in the process of being drafted. In other instances, the tribe has been unable to get agreement with the agency to enter into a PA. It was also noted that agreements “between Nations should be executed by leaders of such Nations” and that respect should be shown in such documents for those in tribal leadership positions. 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? Nearly two-thirds (61 percent; n=19) of the respondents to this question indicated that they are not financially compensated for their participation. Sixteen percent (n=5) noted that they are, three percent (n=1) were not sure, and an additional six chose “Explain.” Some tribes do not charge a fee for their participation in the Section 106 process, such as to complete desktop review of projects or to perform monitoring activities, whereas others are compensated to attend annual consultation meetings and to perform fieldwork such as monitoring. Others are not compensated at all for any activity, yet they have the responsibility to pay their employees to complete research, pull materials together for consultation meetings, and participate in those consultation meetings. It is noted that, when conducting surveys and being compensated for the work, the compensation goes to the individual performing the work, not to the tribe. 8. If your tribe is compensated for participating in the Section 106 process, how are you financially compensated and by whom? Some tribes noted that they enter into contracts and receive grants, perform the work, and invoice on a cost-reimbursable basis. Others noted they receive reimbursement for travel expenses (e.g., travel/mileage, lodging, meals). Some agencies compensate for fieldwork but not for their time spent on consultation. One respondent noted that they work through an archaeological firm that compensates the individual, not the tribe.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 15 FIGURE 2: Geographical Representation, Tribal Respondents