Transportation Planning Capacity Building Program

– Peer Exchange Report –

State DOT Tribal Liaison Roundtable and Panel Discussion

Table of Contents

1. Summary
2. Background
3. Roundtable-First Day
   1. Introduction by Tim Penney, Native American Program Coordinator, FHWA Office of Planning
   2. State Presentations
   3. Topic-Focused Discussion
   4. Concluding Discussion for First Day
4. Presentation and Panel Discussion at ITA Conference-Second Day
   1. The Hood Canal Bridge Rehabilitation Project and the Port Angeles Graving Dock Program
   2. Tribal Liaison Panel Discussion
5. Conclusion
6. List of Participants
7. Agenda

I. Summary

This Peer Exchange was held as part of the Transportation Planning Capacity Building (TPCB) Program, which is jointly sponsored by the Federal Highway Administration (FHWA) and the Federal Transit Administration (FTA). The Washington State Department of Transportation (WSDOT) submitted the application for the event to bring together the State Department of Transportation (DOT) tribal liaisons from all of the states that currently have full-time tribal liaison positions. These are state DOT staff positions dedicated to coordinating and improving the state-tribal relationship in regards to transportation planning. Liaisons from eight states gathered in Spokane, WA on June 7th and 8th, 2005 to share their programs and discuss successful practices.

Most of the first day followed a state focus, and consisted of presentations by each liaison about one or more of his/her main initiatives (see Figure 1 below). The focus throughout the day was on overall programs and policies, rather than individual projects. In addition, though recognizing that challenges abound, presentations focused on successes and practices that have worked well. After these presentations, a short amount of time remained for topic-focused discussion and interchange among states on how various issues were handled. In conclusion, the participants reflected on the variety of ways that the liaison position is organized at various state DOTs, and discussed how the effectiveness of the role can be maximized, regardless of the level or placement of the position. The first day's events took place at Eastern Washington University in space provided by the Northwest and Alaska Tribal Technical Assistance Program (TTAP).

Figure 1: The State DOT tribal liaisons discuss their programs at the first day's roundtable.

On the morning of June 8th, the tribal liaisons participated in the Intertribal Transportation Association (ITA) conference being held concurrently in downtown Spokane. The tribal liaison from WSDOT made a presentation about a large state transportation project in Port Angeles, WA, which led, during construction work, to the inadvertent discovery of a large Native American gravesite. Then the tribal liaisons presented a panel discussion for the ITA attendees, most of whom were tribal leaders and tribal staff. Each liaison gave a short description of his or her main policy focuses, and the panel answered audience questions.

The Native American Program Coordinator of the FHWA's Office of Planning facilitated the peer roundtable and introduced and led the panel discussion.

A list of participants and the Peer Exchange agenda appear at the end of this report.

Please note that the intent of this report is to document the roundtable proceedings. While many relevant regulations are discussed, there is no intent to make definitive statements on any federal or state law or policy.

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II. Background

Along with the U.S. DOT, state DOTs have an essential role to play in upholding the responsibility for government-to-government consultation with sovereign Indian nations. Many state transportation projects have the potential to affect tribal communities' environmental and cultural resources, while tribal developments or transportation projects undertaken through Bureau of Indian Affairs (BIA) Indian Reservation Roads (IRR) funding may affect state transportation assets. Since tribes are sovereign governments, coordination among tribes and other governments (state or federal) is a government-to-government relationship, extending past the realm of typical public participation efforts and input opportunities afforded private citizens. To manage this responsibility and ensure a thorough and efficient state effort, eight states have created full-time tribal liaison positions within their state DOTs. Many of these positions were created within the past five years, and some were created much more recently. In 2002, five state DOT tribal liaisons and the FHWA met in Sacramento; three states have added DOT tribal liaisons since that time. This peer exchange was the first time that liaisons from all eight states have met.

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III. Roundtable-First Day

1. Introduction by Tim Penney, Native American Program Coordinator, FHWA Office of Planning
   
   Mr. Penney, Native American Program Coordinator at the FHWA Office of Planning, introduced the peer roundtable by noting that each state DOT, as well as the FHWA, arrived at creation of its respective tribal liaison position differently. The unifying factor has been the realization of the importance of a central point of contact dedicated to coordinating tribal-DOT interactions. Mr. Penney noted that it has been a challenge for managers and staff, at both the state and FHWA levels, to realize that working with tribal governments should be a part of their day-to-day work, rather than something extra, and that it is a responsibility shared by all state DOT and FHWA personnel in all divisions.
2. State Presentations
   1. Linda Aitken, Tribal Liaison, Minnesota Department of Transportation (Mn/DOT)
      
      Minnesota's tribal liaison position was created in 2001 to coordinate Mn/DOT's interactions with the state's 11 Indian tribes. The primary impetuses for creation of the position were environmental and archaeological concerns, and this was reflected in the job description posted. Mn/DOT and the FHWA consulted with the tribes in creating this job description and specifying the qualifications desired. Ms. Aitken is the first incumbent of the position.
      
      When Ms. Aitken first started, there was little formal state-tribal coordination with which to work, although Mn/DOT's Central Offices and Districts had been working with tribes on archaeological issues, equal employment opportunity efforts, and other transportation projects of tribal interest. She found that, because of the lack of a coordinated program for dealing with state-tribal issues, many similar concerns had to be addressed again and again in different contexts. She went out to meet with the tribes to get a sense of the variety of issues and concerns they had. From these initial meetings Ms. Aitken and the Mn/DOT Commissioner resolved to meet with every tribe and use the input to put together Mn/DOT's program to improve the state-tribal relationship with regards to transportation. Tribal initiative was also instrumental in getting this effort started; an invitation from the Red Lake Tribe for the Mn/DOT Commissioner to visit and a stated desire to form a partnership led to the first statewide Tribes and Transportation Summit/Conference. A historic agreement was signed by Mn/DOT and ten of the 11 Minnesota tribes.
      
      Since that time a cornerstone of Mn/DOT's partnership with the tribes has been an annual conference, three of which have been held so far. Mn/DOT and the FHWA's Minnesota Division are permanent members of the conference planning team, while a different tribe and the nearest Mn/DOT District host and help organize the conference each year.
      
      Much effort is put into planning and coordinating these conferences to attain a high level of participation from several different constituent agencies as well as from tribes. Mn/DOT's high-level staff make joining each conference a priority, though scheduling means that full attendance is not always possible. Coordination with counties ensures inclusion of their staff as well (county engineers and each county's commissioner). federal participation includes not only staff from the FHWA's Minnesota Division, but also engineers from the Bureau of Indian Affairs' regional and agency offices. Beginning with the next annual conference, Mn/DOT plans to invite the U.S. Forestry Service, whose roads impact local tribal communities. Relevant city staff are also invited. Other invitees can depend on the focus of the conference; for instance, many planning-related parties were invited at the most recent conference, where planning was the focus. The conference is always hosted by a tribe, whose tribal council addresses the gathering and puts forth that tribe's priorities, with the planners working hard to get a high level of attendance by other tribes. Limited tribal staff capacity (for instance, some tribes do not have an engineer or a public works staff) and budget-imposed restrictions on travel of tribal staff present challenges in achieving comparable attendance by tribal staff as by Mn/DOT staff. However, Ms. Aitken feels that, in light of these challenges, tribal attendance is quite good.
      
      Mn/DOT has a strong commitment to holding the conferences at tribal locations (all of the Minnesota tribes have casinos, conference centers, hotels, or similar facilities). Mn/DOT finds that holding the conferences at these sites provides very economical rates and good service while at the same time supporting tribal businesses and drawing tribes into real partnerships. The most recent conference was funded by an FHWA grant directly to the planning partner tribe, a historic first for the FHWA which freed the joint Mn/DOT-FHWA-tribal planning team to hold the conference at that tribe's location.
      
      Mn/DOT and its planning partners work hard to include cultural as well as technical exchange at the conferences. For instance, they carefully design seating at meals to ensure a mix of backgrounds at every table, and they try to mix in cultural aspects where appropriate, such as tribal food and entertainment and food labels in the language of the host tribe. Cultural perspectives can also be included in the body of the conference work. For instance, a conference session on design principles included both an academic perspective, with a local professor's paper on trust land, and a cultural perspective, with a presentation on what land means to Indian people. One of most important components of the conferences is roundtables, which respect the traditions of some tribes to sit so that participants can look at each other. The emphasis on talking with each other, rather than at an audience, is very valuable.
      
      Over three years these conferences have shown that concrete achievements do develop from the conferences, with benefits for both tribes and Mn/DOT. The conferences have brought tribal staff and key Mn/DOT personnel face-to-face, which has allowed for partnerships to develop and subsequently help move projects forward. For example, at the 2003 conference, one roundtable discussion centered on how all parties could work to address the Prairie Island Tribe's concern about the lack of reliable evacuation routes in the case of a catastrophe on the power plant in their community (there is only one exit route, and it is subject to blockage by trains at a railroad crossing). As of summer 2005, the Prairie Island Tribe had secured funding from FHWA toward the design and construction of a bridge overpass to add a reliable route over the railroad crossing, with Mn/DOT entering into an Agency Agreement with the tribe to assist with securing the preliminary engineering services for the project. Context sensitive design will be used to include early involvement by community members and ensure that the project is appropriate for the natural, social, economic, and cultural environment.
      
      Mn/DOT feels that the relationships that develop from these conferences are very beneficial for the Department. To build upon these successes, one Mn/DOT District is working with a tribe to establish a Tribal Transportation Advisory Committee (TTAC). The TTAC's purposes include facilitating information sharing and providing opportunities such as leverage funding.
      
      Each conference has a focus, with the 2004 conference focused on tribal, state, and county planning processes and their coordination. Coordination of the planning process leading to development of each tribe's Transportation Improvement Program (TIP) and the planning process leading to development of the State Transportation Improvement Program (STIP) has been a challenge in many states, as has ensuring inclusion of appropriate on-reservation projects directly on the ¹STIP. Tribal staff have historically viewed the two programs as parallel but completely separate. Mn/DOT is including BIA engineers in these conferences and in relevant meetings to improve state-BIA planning coordination, and simultaneously efforts are underway to improve tribal-state coordination. In Minnesota, tribes participate as members of the area transportation partnerships (ATPs), which are the earliest part of Mn/DOT's official project planning process; Mn/DOT is now looking at ways to coordinate with tribal transportation priorities even before the official state planning process begins. Having the TTAC is also expected to improve coordination of tribal TIPs and the STIP.
      
      In closing, Ms. Aitken outlined a few future programs towards which she would like to work. Although the conferences provide a good basis for cultural exchange, Ms. Aitken feels that it would be beneficial to provide additional presentations for Mn/DOT staff on tribal historical perspectives, legal issues, tribal sovereignty, and tribal government. It is important to emphasize that tribes are sovereign governments, not minorities, and a government-to-government relationship is appropriate. The training would assist state employees in furthering their relationships with the tribes. Ms. Aitken emphasized that education about these issues needs to be ongoing to ensure that new staff are familiar with their responsibilities.
   2. Russell McDonald, Tribal Liaison Officer, Montana Department of Transportation (MDT)
      
      Mr. McDonald's presentation focused on efforts in Montana to improve highway and traffic safety on the state's seven Indian reservations. On-reservation crash and fatality rates are much higher than those in other areas of Montana. Mr. McDonald feels tremendous support from the offices of the Governor of Montana and the Director of the MDT and thinks that the current administration is making it a priority to increase tribal participation in state government.
      
      MDT is working to improve the availability of motor vehicle crash and fatality data on reservations for the purposes of qualifying for federal, BIA, and state funding for projects to improve highway and traffic safety for tribal members. A task force, including representatives of the Montana Highway Patrol (MHP), the FHWA, the Montana-Wyoming Tribal Leaders Council, and MDT has been working with tribes to gather this data. The following two issues have been identified and are receiving attention:
      • Collecting data: Many tribes are working to improve the collection of crash and fatality data. Tribal police as well as, on some reservations, BIA police are responsible for responding to incidents and preparing crash reports. Increasing the use of automated crash reporting systems would increase data consistency and speed its availability. These consist of handheld devices into which the responding officer enters the data, which are then downloaded at the police station and can be submitted electronically to MDT quickly, while their relevance is still great. MHP currently uses a system known as MARS/ROVER, and had offered to make it available to tribal and BIA officers. Other commercially available systems have also been identified. Some tribes may also prefer to develop their own systems. Although the choice of system is not of key relevance to the MDT, peer discussion focused on the importance of making sure that any new systems did not introduce new data formats. Mr. Penney noted that FHWA and the National Highway Transportation Safety Administration (NHTSA) have developed a standardized data format known as the Model Minimum Uniform Crash Criteria (MMUCC), which includes all of the data fields present in the reports of various states, and the FHWA is working currently to expand this system to include the BIA. Although the peers recognized the importance of respecting tribal jurisdiction, they felt that it was important to avoid "reinventing the wheel" on data collection.
      • Releasing data: Many tribal governments are reluctant to release any crash information that could be used to identify individuals involved in the incident. Therefore, the MDT has agreed to accept reports with all personal information, including names and social security numbers, removed. Peer discussion focused on reluctance in some states to release data at all, especially where tribal safety data affects calculation of fees due under gaming compacts ² and the choice of set of data to use (tribal or state) can have monetary significance.
      
      Other MDT tribal traffic safety efforts include:
      • A NHTSA grant for a project to improve seat belt and impaired driver awareness on three pilot reservations. Through a consultant contract, the pilot program hired paid interns through tribal colleges to lead focus groups about seat belt usage and impaired driver issues. The consultant is then developing radio and television public service announcements to increase awareness. One important feature of these announcements is that they are tailored to each reservation, with content based on tribe-specific ideas gathered from the focus groups and featuring an Indian narrator.
      • A Tribal Safety-Conscious Planning Forum, hosted by MDT in Helena in early June 2005. Including staff from tribal planning, tribal police, and the Indian Health Service (IHS), as well as the MDT Director and other high-level state representatives, this conference focused on transportation planning on reservations. National speakers addressed topics such as partnership and collaboration, impaired driving, the importance of data, and state and national highway safety initiatives.
      • Various train-the-trainer programs. These include programs addressing chemical dependency and the proper installation and use of child safety restraints in vehicles.
      • Planning to make "breathalyzer" equipment available to tribal police. MDT is in the planning stages of making "breathalyzer" equipment available to tribal police, most likely through long-term lease.
   3. Tom Teegarden, Tribal Liaison Officer, New Mexico Department of Transportation (NMDOT)
      
      Mr. Teegarden began with a brief overview of the climate of relations among tribal governments and the state in New Mexico. The relationships between the State of New Mexico and its tribes suffered heavily in the past from the political tensions surrounding the debate on legalization of Indian gaming. However, Mr. Teegarden feels that the current governor's history of good working relationships with tribes in his previous positions, and his demonstrated commitment once in office to appointing Native Americans to his administration, is leading to improvements in the level of trust among state and tribal institutions. The Governor recently issued an Executive Order directing state departments to conduct consultation with tribes.
      
      These improving relations led to a series of watershed documents in state-tribal relations, including:
      • Memorandums of Understanding (MOUs) signed between the State DOT and several New Mexico pueblos. These MOUs, though not legally binding, require a working group consisting of representatives of NMDOT (usually including the District Engineer) and of a tribal government to meet in person at regular intervals to "establish goals, objectives and delineation of tasks relating to implementation of projects of mutual concern, and to identify and seek to remove obstacles to the achievement of those goals, objectives, and tasks ³." When projects are identified as objectives, the working group is required to meet at least quarterly to work towards a project-specific agreement. The first MOU was signed with Acoma Pueblo in 2002, and as of November 2004, similar agreements had been signed with four other pueblos including the Jicarilla Apache Nation, and the Navajo Nation (the state's largest tribe with over 80,000 members in New Mexico).
      • Statements of Policy and Process, signed by New Mexico Governor Bill Richardson and the Governors of New Mexico's 19 pueblos as well as the President of the Navajo Nation, in 2003. These documents reaffirm the sovereignty of the tribes and of the state, and lay out the process for government-to-government consultations and negotiations. These agreements apply to all "areas of interest or concern," ⁴ not just with regard to transportation, but also to issues handled by all other departments of state government. The agreements stipulate that the Governor and the relevant tribes meet regularly to ensure that the statement is carried out.
      • New Mexico Department of Transportation Guiding Principles, issued by NMDOT Secretary Rhonda G. Faught. This includes six points, including one on working with tribes.
      
      In Mr. Teegarden's opinion, the biggest success brought about by these agreements on a day-to-day basis is increased familiarization of state and tribal officials and transportation staff. Frequent changes among tribal leadership, with many terms of just one year, and turnover among state staff, mean that education needs to be an ongoing effort on both sides. However, turnover also affords the opportunity to bring in new staff and change institutional attitudes.
      
      Mr. Teegarden briefly reviewed several other initiatives on which he is working to improve state-tribal relations in New Mexico:
      • Improving integration of tribal projects into state transportation planning: NMDOT is currently developing a survey instrument to assess tribal participation in the state's Regional Planning Organizations (RPOs) and Metropolitan Planning Organizations (MPOs), which are the primary vehicles for prioritizing projects to place them on the STIP. However, the focus among most New Mexico tribes has been on preparing projects for the tribal TIP for BIA IRR program funding, as BIA funding has been considered more reliable. The long time horizon from placing a project on the STIP to construction also presents a challenge for receiving institutional commitment from the tribal government, as many tribal leaders in New Mexico change yearly. Mr. Teegarden is working on practical solutions to overcome these challenges and reach the goals of improved regional cooperation and integration. The idea of a special RPO just for all of the state's tribes has been suggested, but although it may temporarily increase tribal participation, Mr. Teegarden feels that it would defeat both of these goals.
      • Affirming tribal civil jurisdiction on NMDOT rights-of-way over reservation land: NMDOT is working with the tribes to create mutually acceptable solutions to the questions of civil jurisdiction on the portions of reservations where right-of-way has been granted to NMDOT for the purposes of highway construction and ensuing maintenance. Recent Supreme Court decisions have held that, absent explicit statement to the contrary, tribes granting right-of-way are ceding other civil jurisdiction powers on that area as well. One project on the Navajo reservation reached an impasse over disagreement as to the rights granted; although the Navajo Nation has now succeeded in having additional language added to the state statute on highway rights-of-way to reserve its other powers on that land, NMDOT is still working to achieve solutions with other tribes as well.
      • Reversing state policy not to reimburse road contractors for tribal taxes: In 2002 New Mexico developed a policy not to reimburse the state's roadwork contractors for tribal taxes incurred for work performed on state rights-of-way over reservation land. (Their sovereignty allows tribes to levy gross receipts and other types of taxes.) Although this policy was consistent with recent Supreme Court decisions restricting tribal jurisdiction on these rights-of-way, Mr. Teegarden feels that it was a significant obstacle in making New Mexico a leader in state-tribal relations. The state is now going to reverse the policy.
   4. Colleen Jollie, Tribal Liaison, Governmental Liaison Office, Washington State Department of Transportation (WSDOT)
      
      Ms. Jollie began with a discussion of how the tribal liaison position fits in with the WSDOT organizational structure, and how she organizes her job for maximum success. To reflect the government-to-government nature of state-tribal interactions, and their importance, the position was relocated in 2001 from the Planning Office to the Governmental Liaison Office, which is in the Office of the DOT Secretary. Ms. Jollie emphasized that her charge in this position is to give those who work on tribal transportation planning the best tools possible to do it well. She feels that it is crucial for a tribal liaison to engage the technical staff, as the tribal liaison's role is not to conduct planning activities but rather to make sure that all such activities are centrally coordinated. At the state or federal level, successful tribal liaisons need to work hard to educate others that every DOT agency has something to do with tribal planning and that this needs to become a part of that agency's daily work. Agencies must learn to think of the tribal liaison as the overall coordinator, rather than the "Native American department" that will handle all tribal issues.
      
      The handling of Tribal Employment Rights Ordinances ("TERO ordinances") within WSDOT is a good example of Ms. Jollie's success in that goal. As part of their sovereignty, tribal governments are permitted to enact these ordinances, which can be used to establish hiring preferences for tribal members on road and other contracts on and near a given reservation. A TERO tax, payable to the tribal government, can be levied on contractors to reimburse the tribe for efforts to recruit, select, and maintain the skills and readiness of qualified tribal members for this employment. Ms. Jollie does not handle TERO issues directly; instead they are unified with the state's other Disadvantaged Business Enterprise (DBE) efforts. However, providing training is an important part of Ms. Jollie's role and helps to make others aware of their responsibilities with regards to state-tribal relations; WSDOT offers "TERO 101" to its personnel to ensure widespread knowledge of this key issue.
      
      Ms. Jollie also feels that it is crucial to have tribal coordination duties handled at WSDOT's regional offices, so that tribes have a local contact. Thus, each regional office has a high-level person designated as the "go-to" person. This person does not work full-time on tribal coordination but has it as one of his/her key duties.
      
      WSDOT does have one other full-time staff person dedicated to tribal coordination. Megan Beeby, in the Environmental and Engineering Programs Office, also attended the peer exchange. Her presentation, focusing on WSDOT's consultations with tribes, is discussed following the summary of Ms. Jollie's presentation.
      
      Ms. Jollie highlighted several recent projects:
      • Publishing and distribution of the Centennial Accord Plan: This plan has three sections, including (1) a description of the organization and responsibilities of WSDOT, (2) a directory of tribal coordination contacts within WSDOT, and (3) maps of tribal areas of key importance for becoming aware of and minimizing impacts of state transportation facilities. These include areas of cultural interest and areas with fishing and hunting/gathering rights protected by treaty. The sections of the Centennial Accord Plan, named after the 1989 accord signed by the state Governor and 24 tribes, were designed to exchange key information in both directions. The Plan was widely distributed throughout WSDOT and to tribal staff and is available to the public.
      • Annual conferences: Turnout has more than doubled since the first conference, with about 175 participants from the FHWA, the BIA, tribes, labor unions, etc. at the most recent one. Tribal participation has at least doubled, in part because WSDOT has helped find travel funds for tribal staff. Ms. Jollie emphasized that the conferences focus on working sessions, rather than formal presentations, and give access to WSDOT executive-level individuals. Each conference has three tracks: planning, environmental consultation, and workforce development, and a report is prepared after each conference. The latest conference report (2004) includes results of a survey of all aspects of tribal transportation, developed with the tribes and administered online through a free web-based survey site.
      • Establishment of the Tribal Transportation Planning Organization (TTPO) in 2003: Similar to the state's Regional Transportation Planning Organizations (RTPOs), the TTPO coordinates transportation planning between the tribes and WSDOT, from the tribal side. Its leaders are all tribal members and the organization is located with the tribes. Ms. Jollie feels that the TTPO meetings, which are also attended by WSDOT, FHWA, and BIA representatives, are very valuable in preparing tribal staff to make the most of larger regional meetings.
      
      In addition, WSDOT is working with the state's tribes to update the tribal road inventory as well as possible for the purposes of tribal funding allocation under the BIA IRR program, and to ensure that the STIP and tribal TIP mesh well.
      
      One area that Ms. Jollie feels needs further efforts is tribal administrative capacity building. In an effort to address this, WSDOT asked the state legislature for $1 million per year from the state to match the $35,000 administrative capacity-building grants made each year to each tribe under the BIA IRR program. The goal was to fund a planning position at each tribe. However, this funding request was not approved. Ms. Jollie acknowledges that challenges remain, but feels that the hard work put in by many state and tribal staff members to build solid partnerships has put the state and the tribes in a good position to continue improving coordination and transportation infrastructure.
   5. Megan Beeby, Environmental Services Tribal Liaison, Environmental and Engineering Programs, Washington State Department of Transportation (WSDOT)
      
      Ms. Beeby is working on a two-year project to define and articulate WSDOT's environmental and cultural consultation procedures and train WSDOT staff in them. She is also working to define WSDOT's approach to handling treaty fishing rights.
      
      Ms. Beeby's goal with the consultation process is to define how high-level requirements imposed by treaty, WSDOT executive order, the 1989 Centennial Accord between the state and tribes, and federal law can be implemented so that they are useful, and usable, at the project level. A policy to guide consultation was developed by working with tribal chairmen and staff. Consultation for each project is supposed to occur at the earliest point possible, but it is not always easy to determine when this is or how consultation can occur. To help clarify these points, Ms. Beeby prepared a brochure explaining the phases involved in planning and completing transportation projects and offering, for each stage, examples of projects where successful consultation has occurred. Ms. Beeby and Ms. Jollie are now visiting each tribe in the state to explain the consultation policy and the options available, and WSDOT is updating its environmental procedures manual to make sure that the commitment to consultation is permanently included.
      
      The second part of Ms. Beeby's work is determining WSDOT's appropriate approach to handling fishing rights established by historic treaties, granting tribes the right to take up to 50 percent of the fish in their Usual and Accustomed Areas ("U & A areas"). These rights are sometimes difficult to fit into other established project review processes, such as that required by the National Environmental Policy Act (NEPA), which uses a cost/benefit analysis approach. WSDOT is wrestling with the question of how to assign cost and benefit to fishing rights — what is reasonable compensation for a transportation facility's impact on fishing? Does this figure change as the number of remaining undisturbed fishing areas dwindles? Impact on treating fishing rights is an issue that has not been addressed thoroughly in the past, but is beginning to lead to project delays by various approval authorities. Ms. Beeby feels that this issue is likely to become even more important in the future.
   6. Cynthia Gomez, Branch Chief, Native American Liaison Branch, California Department of Transportation (Caltrans)
      
      Ms. Gomez reviewed the staffing of her office and its role in relation to Caltrans' district-level and Civil Rights Program tribal coordination and liaison staff. In her Branch in Headquarters, Ms. Gomez has a staff of three people, and they try to focus only on policies, not on individual projects. More specific guidance regarding cultural resources is provided by the District Native American Coordinator in each of the 12 Caltrans districts, while eight of the districts have tribal liaisons to handle other district-level issues raised by tribes. In addition, the Civil Rights Program has one Native American Liaison to handle TERO issues.
      
      One of the most important roles of Ms. Gomez's office is to ensure that tribal-related issues of importance to statewide policy are thoroughly discussed before the related question is forwarded to management for final decision. For instance, Ms. Gomez is designated as the Caltrans legal liaison on Indian issues. While Caltrans uses an outside resource with legal qualifications and Indian law expertise to explain the legal details as necessary, Ms. Gomez uses her experience to clarify applicability to a particular policy (for instance, which court precedent on jurisdiction of state rights-of-way across reservation land is applicable).
      
      Ms. Gomez's office also serves as staff for the state's Native American Advisory Committee. This committee consists of tribally-nominated, Caltrans-appointed representatives who are tribal staff, members, activists, and politicians, as well as three representatives of tribal consortiums. Ms. Gomez's office sets up quarterly meetings of the Committee, attended by Caltrans staff including the Director, FHWA representatives, and usually BIA representatives. The committee serves as a forum for the Native American community to raise issues relating to all aspects of transportation and its impacts, and for Caltrans to raise issues on which it would like advice. Ms. Gomez and her staff are then required to follow up on issues raised, and are given the authority to refer issues to any other appropriate Caltrans division for a response. As the Headquarters tribal liaison, Ms. Gomez is responsible for ensuring that concerns are resolved by the appropriate division (or for reporting back that a request cannot be fulfilled).
      
      Ms. Gomez discussed Caltrans' efforts to improve inclusion of tribal projects on the STIP and improve coordination of the STIP and the tribal TIPs funded through the BIA IRR program. She emphasized that tribal planning should be integrated with all other types of plans that form input into California's Metropolitan and Regional Transportation Plans (see Figure 2 below). These plans lead to prioritization of projects for the STIP.
      
      
      
      Figure 2: Diagram of regional/state transportation planning and programming process in California. ⁵
      
      text description of figure 2
      
      
      In addition, Caltrans works to keep an active role in tribal planning for the TIP. It keeps on file each tribe's Long Range Transportation Plan, the planning document required under the BIA IRR program. Caltrans is assisting some tribes in preparation of these plans as well.
      
      As defined in treaties and affirmed by court decisions and policies in various states, states are required to engage in a consultation process with tribes in transportation planning. Ms. Gomez drew the distinction between public participation and consultation. While public participation opportunities are important for all members of the public, including tribal members, consultation is instead a set of actions that take place between governments, flowing from the government-to-government nature of state-tribal relations. Caltrans must thus distinguish public participation and consultation and show that it complies with laws and policies relating to each one. Consultation is required not just in the case of impacts of state transportation projects on tribal cultural sites and resources, but on all other components and phases of project planning as well, from the Project Initiation Document (PID) to the redesign phase (to address any problems identified during the review and approval processes). Consultation both assists tribal projects in getting approved for inclusion on the STIP, and helps mitigate impacts of other state transportation projects on tribal assets.
      
      Caltrans is working to raise awareness of the consultation process among both tribal and state staff. For tribal staff, Caltrans is working to raise awareness in the field of the need for a PID to start a project on the planning track and identify funding sources, including both BIA and state resources. For Caltrans staff, the department has trained its planners to review the type and extent of consultation that occurred and make comments on this before sending proposed projects to higher levels for inclusion in the STIP. The state has also issued a document to clarify what consultation means, its distinction from public participation, and the importance of beginning it early in the project planning process. Although only two tribal projects have so far been included in the STIP, the state is working to improve coordination and consultation.
      
      It is also important to find effective and fair ways to have tribal representation on RPOs and MPOs, as these bodies are legally empowered to prioritize projects for funding through federal gas tax allotments to states. The Southern California Association of Governments, representing Los Angeles and surrounding areas, is the largest MPO in the country. It has 18 posts on its board and serves an area including 18 reservations. Caltrans thus wrestled with the issue of how to ensure fair representation of all tribal interests while leaving space for city and county representatives, and eventually hired a consultant to devise a fair solution. At the same time, Caltrans had to work to assuage the concerns of some tribes that participation in RPOs and MPOs is inappropriate for sovereign governments, as they should not be lumped in with cities and counties (which are subordinate to the state). Several other tribal liaisons echoed these issues. For instance, Ms. Jollie from WSDOT, noted that some tribes are reluctant to participate in that state's Regional Transportation Planning Organizations (RTPOs-the equivalent of RPOs) as each tribe is only one vote among many city and county representatives and can easily be overwhelmed in voting.
      
      Ms. Gomez mentioned several special issues relating to preparation of transportation plans for corridors in the state. One of Caltrans' senior planners trained tribal staff to prepare video-based traffic circulation reports in some areas to show growth patterns occurring. These reports showed that growth is occurring very differently on reservations than in other areas. This conclusion is important for preparing accurate corridor plans, as not taking tribal growth patterns into consideration will cause projections for corridors that include reservations to be inaccurate. Another issue related to corridor plans is that of development impact fees charged to all developers, including tribal governments. Ms. Gomez stated that tribes are sometimes reluctant to release development and planning data, as they fear that it may be used out of context and they will be charged too much for impacts.
      
      Ms. Gomez also reviewed the process of coordinating with tribes on environmental reviews. Federal and state laws apply, and tribes may have their own environmental ordinances, so coordination early in the project planning process is essential. Closely related to this is the issue of air quality and tribal sovereignty. A few tribes have their own jurisdiction for air quality purposes, although many have to proceed through the state air quality review process. Caltrans is working to improve tribal awareness of state air quality review and the need to allow time to complete it. A related and important issue is environmental justice, which, while required by executive order at the federal level, is in fact controlled by state law in California, adding additional requirements. Environmental justice awareness has illuminated several tough issues for Caltrans, such as how to adequately serve small tribal communities that are so isolated that conventional and emergency vehicle access is quite difficult.
      
      Ms. Gomez reviewed the following policies, resources, and training that Caltrans has put in place to emphasize the importance of state-tribal relations to all of its staff:
      • Director's Policy: Ms. Gomez feels that this high-level policy, issued in 2001, on the responsibilities of all staff throughout the department when working with Native American communities, is key in setting an overall tone that respectful coordination with tribes is important ⁶. Caltrans is the first state agency to have such a policy.
      • Resource booklet: There is a resource booklet on state-tribal transportation issues prepared for Caltrans staff.
      • Training on laws relating to state-tribal coordination and the government-to-government relationship: This training, run by Ms. Gomez and a professional trainer with significant legal experience, explains the letter and the spirit of the relevant laws.
      • Sessions on tribal governments for planners and other Caltrans employees.
      
      Caltrans also provides training for tribal staff, focused on tying together both BIA IRR and California requirements for transportation planning. Although the total BIA IRR funding for California's tribes is quite small (only about $5 million per year), many tribes are historically focused much more closely on the BIA requirements than on placing a tribal project on the California STIP. At the same time, it is important that tribal staff understand recent changes in the regulations implementing the BIA IRR funding allocations; to that end Caltrans recently finished a short film with the Chief of the BIA Division of Transportation explaining these.
   7. Ermalinda Gene, Contract Compliance Program Officer, Office of Civil Rights, Arizona Department of Transportation (AZDOT)
      
      Ms. Gene outlined the staffing structure responsible for state-tribal relationships regarding transportation in Arizona. Arizona's Governor began holding quarterly summits on various topics with Arizona's 22 tribal leaders. The results of these meetings are used to create guidance and mandates for state departments to improve relations with tribes. The Governor's group of key tribal contacts serves in a strategic advisory capacity for the state. The Governor also has an Indian Policy Advisor in her office, to whom AZDOT is responsible for reporting the results of transportation-related efforts to improve the state-tribal relationship (other state departments also have tribal liaisons to coordinate their responses). Within the state DOT, there are tribal liaisons in the planning, environmental, and right-of-way sections, as well as Ms. Gene in the Office of Civil Rights. In addition, to support the department in its efforts, AZDOT maintains a close working relationship with the transportation project coordinator of the Intertribal Council of Arizona.
      
      Tribal staff historically worked most closely with AZDOT District Engineers, but are now branching out to contact the DOT tribal liaisons as well, or the state's transportation board directly. The Arizona Commission on Indian Affairs, an agency within the Governor's office that liaises with tribes, also works directly with tribal staff on transportation and other issues.
      
      Ms. Gene, with a primary responsibility for ensuring that state road contractors comply with all applicable federal and state civil rights requirements, offered a perspective on tribal liaison issues that was somewhat different than that of other peer exchange attendees. She began by describing AZDOT's emphasis on "partnering," a strategy consisting of face-to-face meetings and ongoing contact to build trust and work through issues. Like MOUs or MOAs, partnering relationships are also documented in written form, but are at once less formal and more time-bound. The partnering process requires the parties to continue to return to each other and follow up on issues until all are resolved. Only at that point does the process end.
      
      Ms. Gene explained that the concern is that other types of agreements are legally binding and force contact, rather than creating a situation where both parties desire it. Arizona came to the partnering process for managing the DOT's relationships with tribes after having excellent success with it as a strategy for working with road contractors to avoid legal disputes. This process has proven particularly successful in Arizona, but may not be appropriate everywhere. During peer discussion, Ms. Gomez from Caltrans pointed out that her department felt that, due to the large number of state staff involved and high turnover rates, an MOU document is necessary to remind staff to continue ongoing relationships with tribes. Some other tribal liaisons pointed out that MOUs or MOAs form the legal basis for funding and project contracting with tribes in their states.
      
      Ms. Gene reviewed several mechanisms that AZDOT uses to ensure tribal input is included in state transportation planning:
      • Two types of transportation planning studies: Two types of transportation planning studies are available for tribes, to identify future transportation needs. One approach, the regional profile, examines only state highway corridors within a specific area, and obtains non-tribal and tribal input on improvements to those highways from a regional perspective. The other option is the small area transportation study (SATS), which takes more of a reservation-level perspective. AZDOT will conduct either type of study for tribes, but does require a 20 percent match in funding from the tribe if the tribe chooses the SATS approach. The tribe's BIA IRR planning funding can be applied towards this match.
      • Direct tribal input in the planning process: AZDOT tries to ensure that tribal officials or staff are represented on the Technical Advisory Committees (TACs) convened for various programs and projects. TACs are brought in as advisors in various planning functions within AZDOT's transportation planning section. AZDOT also works to include tribal input in the State Transportation Board, which makes final decisions on which projects will be put on the STIP. The state decided that it was a more effective approach to invite all interested tribal members and staff to attend the public input portion of the Board's meetings, rather than to appoint one tribal representative to a position on the Board. Tribes have also begun hosting Board meetings in order to focus on transportation needs in their areas.
      
      Ms. Gene sees all of AZDOT's efforts to improve coordination with and input from tribes as rooted in the requirements of Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin. AZDOT requires its staff to show that they expended a good-faith effort on every aspect of contact and follow-up with tribes to discuss transportation planning and inclusion of projects on the STIP. Simply inviting tribal staff or members to a meeting is not sufficient; AZDOT staff must now show that they 1) sent a letter, 2) followed up with phone call, 3) had a face-to-face meeting. Ms. Gene explained that AZDOT sees compliance with TERO and other tribal ordinances as a Title VI issue, as well. AZDOT writes into all construction contracts that cover work on reservations that the contract-holder has the responsibility to be aware of all tribal laws and ordinances. Arizona's partnering process is used with the contractor before each contract and has been quite successful in reducing incidence of disputes and litigation.
   8. Gwen Carr, Community Services Specialist, Bureau of Equity and Environmental Services, Division of Transportation Infrastructure Development, Wisconsin Department of Transportation (WisDOT)
      
      Ms. Carr's position was created very recently, in November 2004, and she began with an overview of the process leading to its creation. Ms. Carr, as an existing WisDOT employee, suggested creation of the position in response to several lingering contracting difficulties that WisDOT was having, which she felt could be more easily resolved with a tribal liaison in place. She became the first liaison when the position was established. The position also includes responsibility for reviewing impacts of proposed state transportation projects on tribal cultural resources, such as archaeological sites, a review required by Section 106 of the National Historic Preservation Act (NHPA). In addition, Ms. Carr's duties include working to increase opportunities for Indian-owned businesses under WisDOT's recently-strengthened DBE program.
      
      A tribal summit in Wisconsin, funded by the FHWA, and a series of meeting between tribes and WisDOT, allowed improvements to a lagging state-tribal relationship to get started. The outcome was a partnership established by an agreement signed in May 2005 by ten of Wisconsin's 11 tribes, with the eleventh intending to sign soon. Ms. Carr feels that the establishment of the partnerships allows her to ensure that respect of tribal sovereignty is permanently engrained in the institutional structure of WisDOT, which she feels is her primary purpose as tribal liaison. The state's DOT is the first state agency to create a signed partnership agreement, rather than relying on a policy statement, which is subject to change and thus may not endure. Ms. Carr noted that representatives of several tribes drove six hours to attend a one-and-one-half hour signing ceremony for the partnership agreement.
      
      The partnership establishes a Tribal Task Force, and WisDOT plans training sessions to familiarize DOT employees and tribal staff with each other's organizations, structure, and practices. The partnership also facilitates transfer of money for tribal transportation planning, and has allocated $400,000 to the Wisconsin Indian Chamber of Commerce for capacity building.
   9. Jay Adams, Assistant Division Manager of Planning and Research, Oklahoma Department of Transportation (ODOT)
      
      Mr. Adams began by noting that, as two-thirds of Oklahoma is under tribal jurisdiction, liaising with tribes is a long-standing and crucial part of ODOT's project development process. In fact, many transportation projects begin through impetus from tribes. The Oklahoma Tribal Transportation Council (OTTC), established in 1993, is a body consisting of tribal representatives which advises the Governor. Two key achievements of the OTTC have been:
      • helping to create statutorily the Tribal Transportation Advisory Board (TTAB). The TTAB advises the ODOT Director on tribal transportation needs and relevant policies.
      • developing legislation which facilitates direct coordination of state and BIA IRR tribal transportation planning, without the BIA as go-between, for tribes that manage their TIPs themselves (tribes that have elected "self-governance" under the Indian Self-Determination and Education Assistance Act, P.L. 93-638).
      
      In Oklahoma, the STIP is carefully integrated with the TIPs through the BIA IRR program, since so many projects cross reservations and are therefore eligible for funding through either or both programs. ODOT is very involved with helping ensure that tribes can meet the significant requirements for road data (traffic counts, documentation of roadway condition, etc.) needed to qualify for funding under the BIA IRR program. As part of this work, Mr. Adams realized that the data collected on every public road by the state for FHWA requirements should be usable for fulfilling most BIA IRR requirements as well.
      
      Mr. Adams has been working over the past several years to develop a workable process for sharing relevant state-generated data with Oklahoma's tribes. About five years ago his office developed a geographic information system-based (GIS-based) road data system called Geographical Resources Intranet Portal (GRIP), which is available to ODOT staff over their intranet. He is now leading a pilot project with the BIA, extracting roadway information based on reservation spatial boundaries and determining if it meets BIA requirements. Preliminary BIA approval for this method has been granted as long as the steps taken are well-documented. This approach will allow the data to be sorted by relevant reservation and the appropriate data forwarded to each tribal transportation departments for its use. ODOT will then provide training on understanding and using this data format, if necessary.
      
      ODOT's Planning and Research Division is now considering the feasibility of writing a software program to convert the data automatically into the format needed for input into the BIA IRR system. Looking to the future, Mr. Adams explained that he would like to set up a cooperative system, based on a centralized computer server accessible over the internet that would allow the state and each tribe to access and update data as necessary. A further enhancement would be to connect video logging capabilities to this. Video logging allows roadway layout and condition to be documented via vehicle-based video cameras, and would allow tribal staff to participate in data gathering. Mr. Adams reiterated the need for ODOT to provide training to tribal staff on any sort of new data collection or manipulation technology as it is made available.
      
      There was significant interest among the other tribal liaisons in ODOT's approach to efficient gathering and distribution of data to meet BIA IRR requirements, and in the idea of a centralized data server for a given state. Although not all data fields required by the BIA IRR program are available through state data, most are. However, some liaisons noted that their states did not have the ability to query existing data spatially to locate data of relevance to each reservation.
3. Topic-Focused Discussion
   
   There was a short period of topic-focused discussion after the state presentations. This focused on:
   • Ensuring adequacy of cultural surveys required under Section 106 of the NHPA: Several liaisons expressed concern that their state DOTs were not looking explicitly for tribal historic and archaeological sites in their project plan review process because of Section 106 exemptions granted in state programmatic agreements with the FHWA. These agreements are intended to streamline the review process, not to mean that no survey is taken. Several liaisons worried that new staff could lose site of this distinction. They noted that making an unexpected tribally-significant archaeological find diffuses trust, slows projects, and raises costs dramatically. Ms. Gomez of Caltrans, for instance, noted that her agency is working to streamline the project plan review process by allowing different types of review (environmental, historic, engineering, etc.) to overlap, but that she wanted to find a way to ensure that cultural surveys were not shortchanged. An example of a way to address this issue was presented by Ms. Jollie and Ms. Beeby from WSDOT, which recently increased its in-house cultural resources staff to oversee contracted cultural survey work and to review the scopes of these contracts to ensure the requisite level of comprehensiveness. Both Caltrans and WSDOT are also changing other documents used to assess adequacy of review, such as checklists used to approve geotechnical boring tests, to more explicitly inquire about the types of consultations conducted and which tribes have been consulted. The liaisons stressed the need to be conscious of the individual needs of each tribe (rather than to lump all "tribal issues" together), in order to maintain a trusting relationship with each Native American community.
   • Efforts to remind state DOTs that tribes should be regarded as communities and governments, not as commercial ventures, even when they run businesses such as gaming facilities: For instance, some state DOTs provide free training to bus operators employed by locally-operated transit services. DOT managers sometimes object to provision of this training to employees of tribally-operated routes to access casinos, claiming that these are business-operated shuttles rather than government-operated transit. However, this is not the case. (Incidentally, many of these routes also serve other purposes than simply bringing customers to casinos, as they provide access to employment or connections to county-operated routes.) Similarly, Ms. Jollie and Ms. Beeby from WSDOT noted that requests by tribal governments for installation of highway signs to direct motorists to their reservations were sometimes met with objections that the tribe simply wants to direct customers to its casino, and that this is not appropriate for state highway signage. The WSDOT tribal liaisons have to explain that tribes are governments and communities and the desired signs are fundamentally no different than those directing drivers to cities and towns. That said, many tribes do also wish to make motorists aware of their gaming facilities. However, although these casinos are government-operated, they still fall under rules in several states restricting signage mentioning gaming (Indian or non-Indian) explicitly.
4. Concluding Discussion for First Day
   
   In conclusion, the participants reflected on the variety of ways that the liaison position is organized at various state DOTs, and discussed how the effectiveness of the role can be maximized, regardless of the level or placement of the position.
   
   The peers noted that there appear to be two different backgrounds represented among the liaisons:
   • Career DOT staff-people expanding their focus to tribal issues, and
   • Individuals with significant experience in tribal issues (often as tribal staff members or consultants) expanding their focus to transportation.
   
   In addition, the positions are placed in different departments and at different levels in various states. The liaisons noted that the level of the position is not important when things are going smoothly, but that there are certainly times when a higher-level position can accomplish more. If the position is not at a high level, higher-level support in the form of, for instance, a DOT director's policy document, is very helpful.
   
   The liaisons discussed ways to ensure maximum effectiveness of the tribal liaison role at a state DOT, regardless of the level or departmental placement of the position. They noted the importance of training others to support the program being developed for enhancing the state-tribal relationship. They concluded that tribal liaisons should be working on enduring issues of common concern to all parts of this relationship, while filtering project-specific questions to the relevant DOT division office. Program-specific details, such as those affecting TERO or other tribal taxes or specific types of consultation, should also be directed to separate offices if those are available.

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IV. Presentation and Panel Discussion at ITA Conference — Second Day

1. The Hood Canal Bridge Rehabilitation Project and the Port Angeles Graving Dock Program, Presentation by Colleen Jollie, WSDOT
   
   Ms. Jollie stood in for Douglas MacDonald, the Washington State Secretary of Transportation, who was unable to attend as planned. She reviewed the history of the Port Angeles Graving Dock Program, a large WSDOT project to construct the large concrete pontoons required for rehabilitation of the Hood Canal floating bridge. In August, 2003, work began in Port Angeles, WA to build the facility (called a graving dock) where the pontoons would be constructed. Ten days after the groundbreaking, archaeological material, including Native American human remains, was discovered under the site. Ten days after the discovery, work was suspended. A long process began that eventually involved 60 representatives of Washington state government and the Lower Elwha Klallam Tribe. Ms. Jollie and other WSDOT staff, representatives of the State Attorney General's Office, an executive team, and many others were involved daily. The Tribal Council held many extra sessions and spent countless hours working in cooperation with the state. An archaeological reassessment took place and a Memorandum of Agreement under the "inadvertent discovery" provisions of Section 106 of the NHPA, a Site Treatment Plan, and a mitigation agreement came out of consultation with the Tribe. The construction of the graving dock restarted in March, 2004, with a conveyor belt set up to move the disturbed earth with great care and approximately 80 tribal members employed to look for remains and artifacts in the soil. Eventually, as the scale of the findings grew, the Lower Elwha Klallam Tribe decided to request permanent stoppage of the construction of the graving dock at this site, writing a letter on December 10, 2004 to WSDOT Secretary MacDonald requesting that another approach be found. The decision to abandon the project at the site was announced by the Governor and Secretary MacDonald on December 21, 2004. ⁷
   
   A process of scrutiny and review is continuing at this time, with a WSDOT report to the Governor and Legislature completed and a performance audit by the Transportation Performance and Audit board beginning. FHWA review is possible.
   
   In a moving presentation, Ms. Jollie emphasized how heart-wrenching and difficult the entire process was for all involved. She outlined the main lessons that, in her opinion, could come out of the experience:
   • It is crucially important that tribes have the staff and professional capacity to manage and be aware of cultural resources and to represent them. During the review and permitting process for this project, a large group of federal and state agencies was involved. The local tribes were invited, but did not have the capacity to participate. In hindsight, WSDOT realized how important this capacity is in allowing a tribe to be an active advocate of its cultural resources.
   • Hindsight is 20/20, but there were some "red flags." Ms. Jollie noted several factors that could have been recognized as substantially raising the risk for the historic and cultural resources review to miss the location of the ancient village and burial ground.
     • Under scheduling and budget pressure, the permitting review ran concurrently with the Port Angeles site selection and the contract bidding process, with the entire process completed between October, 2002 and the end of June, 2003.
     • Less than $7,000 was spent on the Cultural Resources Survey, which met the requirements of Section 106 of the NHPA but inadequately addressed the tribal cultural issues. Although the archaeologists knew a cemetery associated with a historic village was somewhere in the vicinity, they did not think that it was located precisely in that location. After reviewing the history, they spent only four days on a field survey, which occurred in November when the rainy weather in the area makes excavation work difficult. However, the site also was not without challenges, as it had been previously disturbed and undergone filling during heavy industrial development in the early 20th century. In addition, the remnants of a sawmill on the site prevented boring of test holes in the precise location where intact archaeological sites were later found. The archaeological consultant prepared a report and proposed a monitoring plan. This plan did work as intended when remains were inadvertently discovered after work began.
   • Existing laws have significant shortcomings in their ability to protect previously-disturbed cultural resources. Section 106 of the NHPA is based on a historic preservation perspective, and is concerned with the archaeological and scientific value of buried sites rather than the cultural value they hold for the descendant tribe. As previously-disturbed sites will not result in archaeologically accurate knowledge, their protection is not a priority of this law. However, for the descendant tribe, cultural and human remains are of paramount importance in any condition. Therefore, for previously-disturbed tribal cultural sites, there is a mismatch between, on the one hand, the narrow scope required for the Cultural Resources Survey and the limited mitigation mandated in case of inadvertent discovery, and on the other hand, the significant amount of care and attention needed to protect the tribe's heritage.
   
   Ms. Jollie noted that, although the initial Cultural Resources Survey hewed more narrowly to the requirements of Section 106 and was in hindsight inadequate, WSDOT averted an enormous amount of further damage to the cultural resources after their discovery by having archaeologists and tribal members remove the soil carefully and sort through it thoroughly, rather than proceeding apace with construction bulldozers. She emphasized that in doing this the state did much more than was required by Section 106, which, as currently written, would not prevent a less committed state DOT from achieving a much worse outcome.
   
   Several changes in WSDOT staffing and policy have come out of the graving dock experience:
   • More staff archaeologists hired: WSDOT has added two staff archaeologists to increase its oversight over consulting archaeologists hired to conduct cultural surveys.
   • Review of and increase in scope of required cultural reviews: WSDOT now requires reviews of the scope of the cultural survey planned by consulting archaeologists to ensure that the work planned is adequate. Scopes are now required to include face-to-face meetings with potentially affected tribes. In addition, WSDOT's decision to have Ms. Beeby focus much of her time on determining how environmental consultation with tribes can work most effectively was in large part inspired by the graving dock episode.
   
   In closing, Ms. Jollie explained that she feels that the problems that occurred with the graving dock project stemmed from the limited scope of the initial cultural resources investigation. She stated that efforts are underway to change Section 106 right now, and the results could further negatively affect its protection of tribal cultural resources. Ms. Jollie expressed strongly that tribes need to engage in that process to protect their interests.
   
   All the remains discovered were carefully labeled, mapped, and stored so that they can be repatriated to the tribe. Although an extremely painful episode for all involved, the discovery of this priceless site and the indexing of these remains has provided important information about the heritage of the tribe, the community, and the entire State of Washington.
2. Tribal Liaison Panel Discussion
   
   Mr. Penney introduced the panel of tribal liaisons and reviewed the work accomplished at the previous day's roundtable. Each panelist gave a brief overview of the projects in which he or she is involved and the main initiatives in progress in his or her state to improve state-tribal relationships (see Figure 3 below).
   
   
   
   Figure 3: The panelists introduce themselves to the ITA conference attendees.
   
   The following is a summary of the audience questions and comments received and the discussions they initiated:
   • An audience member asked in what form states provide memoranda required by the BIA IRR program promising that the state will maintain certain tribal roads. Mr. Adams stated that MOUs are used for this purpose in Oklahoma, while Ms. Gomez noted that California's MOUs do not get to that level of detail. Caltrans provides letters instead. Ms. Jollie stated that some of WSDOT's districts provide letters for the local tribes for this purpose.
   • An audience member from Wyoming commented that funding from the FHWA's Office of Civil Rights should be more tightly tied to the process of assisting tribes with meeting the requirements of the BIA IRR program and helping them take advantage of the roadway construction jobs that come out of IRR projects. He commented that Wyoming uses money from the Office of Civil Rights as grants for tribes to be used to prepare tribal Long-Range Transportation Plans and to train construction workers, and wanted to know whether other states had similar efforts. Ms. Gene from AZDOT commented that the FHWA is doing a lot of work in Arizona on construction worker training under on-the-job training supportive services to ensure compliance with Title VI of the Civil Rights Act. She emphasized the importance of having an interdisciplinary approach at the state level, and of working to formalize the state's approach to granting annual Title VI civil rights and environmental justice certification to each MPO, in order to ensure the rigor of this process. Ms. Gomez explained that Caltrans, working with the Office of Civil Rights, developed training to introduce new state and county staff to civil rights laws and related certification requirements, with the goal of making sure that these laws are engrained in everyday procedures.
   • An audience member asked how widespread it is for tribes to have TERO ordinances and TERO officers (tribal staff members in charge of publicizing and enforcing these ordinances). The audience member also asked whether there is training available from states for these TERO officers.
     
     Responses varied widely by state:
     • Ms. Gomez responded that Caltrans has a formal policy to cooperate with tribes that are interested in implementing TERO ordinances, and has a staff-person who offers training on the regulations surrounding TERO. In addition, while Ms. Gomez focuses more on statewide issues, Caltrans' 12 district tribal liaisons are available for more localized assistance, and a large part of their work relates to TERO. Although TERO ordinances apply only to projects on and near reservations, Caltrans is also working to create a job bank of qualified tribal members to make it easy for contractors to employ them for large construction projects even in non-reservation areas. However, even with these efforts, at this time only 16 out of 109 tribes in the state have TERO ordinances.
     • Mr. McDonald from Montana noted that all reservations in the state have TERO officers. The state does not currently offer training for them but could consider it.
     • Ms. Jollie from WSDOT mentioned that one of her first projects was to make sure that Indians would be working on construction projects on and near reservations. She worked with WSDOT's staff-person in charge of TERO issues to provide classes to all tribal TERO officers. WSDOT also teaches partnering strategies to manage TERO requirements to its own regional staff as well as to road contractors. WSDOT is now expanding the program into a larger workforce development initiative, reaching out to the state's Department of Labor and Industry to bring TERO tribal member preferences into the apprenticeship program. Some tribes have worked very actively on such issues; one tribe even bought an area to provide training to its members on operation of heavy road equipment.
     • Ms. Carr stated that two Wisconsin tribes have TERO officers.
   • An audience member asked how the tribal liaisons ensure coordination between the tribal TIPs through the BIA IRR program and the STIPs and ensure input of tribal priorities on the STIP. Ms. Gomez responded that Caltrans, with the help of the state's Native American Advisory Committee, in 1999 succeeded in having the California Transportation Commission pass a regulation requiring that tribes must be consulted on STIP planning. Caltrans rejects projects proposed for the STIP if this requirement has not been met. More recently-passed rules provide guidance on how MPOs and RPOs can show that they have remedied this shortcoming on a previously-rejected project. To complement these rules, Caltrans is now training its staff that reviews project proposals to look for evidence of tribal consultation in all aspects of the plan, not simply as regards cultural resources. The requirement for cultural resources consultation, through Section 106 of the NHPA, appears to be the best-defined consultation requirement, so many states begin with it. However, Ms. Gomez reminded the audience that planning consultation is also in fact defined specifically, in Title 23 of the United States Code.
   • An audience member asked Ms. Carr of Wisconsin how DBE certification is used in that state, and whether there are cases of tribes pursuing DBE certification as a tribe in order to get associated benefits. Ms. Carr responded that DBE certification is for individually-owned Indian businesses and is processed by the state according to particular criteria. She cannot recall any case where a tribe has gone through that process as a tribe, and does not think that it would be an advantage to pursue certification as a tribe or tribal government. To give a perspective from other states, Ms. Aitken of Mn/DOT commented that, in Minnesota, an archaeological business run by the tribal government did get DBE certification, and Ms. Gomez noted that California went through the TERO program instead to get DBE certification for a business run by a tribe.

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Conclusion

The following summarizes key points that came out of the roundtable and panel discussion. These points are presented from the perspective of the participants and are not meant to represent state policy.

• Overarching issues related to state responsibilities to work with tribes:
  • The importance of recognizing that state-tribal relationships are of an intergovernmental nature.
  • The importance of recognizing that each tribe is unique and that different tribes may have different goals with respect to transportation development and with respect to coordination with the state.
• Maximizing the effectiveness of the tribal liaison position: The liaisons recognized that their positions fall at different levels and in different departments in each state. Regardless of structural differences, they identified key points that apply to all states:
  • The high value of having the support of top DOT managers and the state's Governor to set an overall tone that working with tribes is key, and is not just an ancillary duty or the job of one office;
  • The importance of focusing the tribal liaison's work on enduring issues of common concern to all parts of the state-tribal relationship, and of engaging the relevant technical staff to handle more specific issues;
  • With regard to the previous point, the importance of training all DOT staff that they have an important role to play in enhancing the state-tribal relationship, and of providing needed training in relevant laws and policies as well as in cultural sensitivity to allow staff to fill this role effectively; and
  • The importance of ensuring that initiatives to improve the state-tribal relationships are appropriately codified in a legal form, as well as engrained in a practical manner within the state DOT, to ensure that they survive past the tenure of the current tribal liaison.
• Keeping tabs on key issues: Irrespective of the various methods employed by various states to manage their state-tribal relationship, many states deal with the same key issues. These include:
  • Consultation with tribes;
  • Limiting negative impacts of state transportation projects on tribal communities, including on tribal cultural resources;
  • Coordination of state and tribal transportation planning, including coordination of selection of projects for funding under the STIP and tribal TIP;
  • TERO ordinances, including their implications for employment preference and taxes;
  • Other tribal taxes, especially fuel taxes and taxes assessed on roadway contractors;
  • The implications of civil rights laws, DBE programs, and workforce capacity building initiatives on tribal employment, especially regarding roadway projects;
  • Tribal civil jurisdiction, especially in areas where the state DOT has a highway right-of-way;
  • Collection and sharing of roadway- and crash-related data; and
  • Compatibility of data from various sources and understanding of data in context.
• Challenges: These include:
  • The inadequacy of current laws to protect tribal cultural resources, especially previously-disturbed sites;
  • Finding ways to streamline the project review process that do not increase the risk of inadequate consultation or inadequate cultural survey procedures;
  • Limited relevant professional capacity at some tribes;
  • A shortage of knowledge of federal Indian law among some state legal departments; and
  • In partnership with tribes, finding efficient ways to meet the roadway data requirements for funding allocation under the BIA IRR program.
• Current opportunities: The participants were excited about the future, and highlighted several opportunities for further improvement to state-tribal relationships across the country. These include:
  • New options for formation of state- and district-level partnerships arising out of increasing recognition of the importance of the state-tribal relationship (along with the federal-tribal relationship); and
  • The opportunity for tribal governments and tribal members to take an active role in supporting their state's efforts to improve the state-tribal relationship. In particular, Mr. Teegarden reminded the ITA conference participants that tribes have a key role to play in making the case to more states to create full-time tribal liaison positions.

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VI. List of Participants

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VII. Agenda

State DOT Tribal Liaison Roundtable and Panel Discussion

Spokane, Washington
June 7-8, 2005

The focus of this State Department of Transportation (DOT) Tribal Liaison Workshop will be on sharing "what's working" among eight states with Tribal Liaison positions (MN, MT, NM, WA, CA, AZ, WI, and OK). The emphasis will be on programmatic matters rather than project-specific issues. Tribal Liaisons will discuss the activities and initiatives of their office as well as the cooperative opportunities they are creating for successful tribal transportation systems.

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Footnotes

¹ Transportation Improvement Programs, in general, are the list of projects approved for funding in a particular one to three year period. Statewide TIPs or STIPs are the lists of projects approved by the state for funding through state-administered monies. The tribal TIP through the BIA IRR program is the list of projects prioritized by the tribe for funding under the tribe's allocation through the BIA IRR program. Projects on reservations may seek approval under either TIP. (back)

² Gaming compacts are agreements entered into between state governors and tribes, establishing the terms under which a tribal casino can be built. They are required under the 1988 Federal Native American Gaming Act. (back)

³ Memorandum of Understanding (MOU) Template for New Mexico, handout from Tom Teegarden on June 7, 2005. (back)

⁴ State of New Mexico Office of the Governor, Statement of Policy and Process, handout from Tom Teegarden on June 7, 2005. (back)

⁵ From Tribal Governments, presentation given by Cynthia Gomez at the peer exchange on June 7, 2005. (back)

⁶ California Department of Transportation Director's Policy No. 19, Working with Native American Communities, effective date August 29, 2001. (back)

⁷ The Hood Canal Bridge Rehabilitation Project and the Port Angeles Graving Dock Program, presentation prepared by Douglas B. MacDonald, Washington State Secretary of Transportation, June 1, 2005, as presented by Colleen Jollie at the ITA conference on June 8, 2005. (back)

⁸ Colleen Jollie, WSDOT's tribal liaison, stood in for Mr. McDonald as he was unable to attend. (back)

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