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12 The relationship between SHPOs and their respective views, these disagreements are understood to be professional FHWA division offices is more variable, depending on disagreements, not personal. whether the SHPO routinely interacts with FHWA. Three of the SHPO respondents do not have regular interaction with New South Associates, Inc., a Georgia CRM firm, noted FHWA division offices. One SHPO participates in monthly that collaborative efforts among DOTs and SHPOs often meetings with FHWA and DOT. These meetings help main- resulted in improved working relationships among the tain a strong working relationship between the agencies. Two DOT, SHPO, and consultants hired to assist in these efforts. SHPOs report good relationships between the agencies, and The development of historic contexts for archaeological one SHPO has a poor relationship, owing to mistrust between resources was described as one such collaborative effort. the agencies (as discussed earlier). The Kentucky FHWA division office noted that as a result of decreasing agency The attitude of a DOT is also important. The Texas DOT budgets and their concerns about the cost and scope of (TxDOT) noted that its agency is enthusiastic about compli- archaeological investigations, its' relationship with the ance with the law and regulations, and that they are not the SHPO had become strained. As a means to resolve conflict enemy. The agency is also being more proactive in doing between the agencies, the division office will be meeting their job, thus earning the respect of the SHPO by "doing the with the SHPO and state DOT to discuss a range of alterna- right thing." The need for improved relationships was forced tive approaches for archaeological studies. They will also on both agencies by a large increase in the number of proj- review how other states are dealing with these issues. ects. The two agencies had to communicate more effectively to deal with the increasing work load. Based on the survey questionnaire responses, effective practices to counter or prevent poor interagency relations The Iowa DOT formally codified their responsibilities and include those of the SHPO as collaborators in Section 106 compli- ance. The Iowa DOT, FHWA, and SHPO held a partnering Having regular meetings that review ongoing and future workshop in 1997, and all of the participants signed a charter projects; to form a Cultural Interchange Team (CIT) that worked to Participating in collaborative efforts, such as joint resolve process issues among the agencies. If the CIT cannot training; immediately resolve a process issue that is brought to the Establishing joint objectives, goals, and processes; and team, the issue is taken to the CIT members' supervisors for Having upper management support and directives to suggestions and/or instructions. These suggestions or instruc- improve and maintain good relations. tions are brought back to the CIT during its next meeting. If there is still no agreement, then the CIT members take the Such practices are also highlighted in an on-line "how-to" issue to their agency's upper management for resolution. The tool kit for developing programmatic agreements. The tool Iowa DOT noted that "as the partnership progressed and the kit is posted on the AASHTO Center for Environmental number of issues declined, meeting frequency was decreased Excellence website (17). The tool kit also provides some from the initial monthly to bi-monthly, and recently to quar- additional practices for building trust and improving com- terly." In addition, the agency stated that issues are rarely ele- munication, such as vated beyond the team. Avoiding obvious trust killers, Expressing appreciation, TRIBAL CONSULTATION AND Being professional, ARCHAEOLOGICAL INVESTIGATIONS Investing in your staff's knowledge, and Investing time and effort in building relationships. Tribal consultation is an evolving field with special legal issues (e.g., government-to-government relationships, tribal Three of the DOTs responding to the survey noted that sovereignty, and federal agency trust responsibilities), and they have regular meetings with their respective SHPOs to successful consultation requires an awareness of the differ- discuss projects and programs, particularly those that may be ent world views and cultural traditions of the parties controversial. Five other DOTs reported that they have fre- involved. As is evident from the survey responses, and from quent discussions with the SHPO through telephone calls, a recently posted AASHTO website on tribal consultation e-mail, and periodic meetings. These discussions address (18), many state DOTs have taken to heart the need to levels of effort for surveys and National Register evaluations, improve their tribal consultation efforts, particularly with the results of these evaluations, and approaches to resolving regard to archaeological investigations. The Oregon DOT adverse effects on significant archaeological sites. When has quarterly meetings with three of the state's tribes, and conflicts do occur, these meetings are used as the means to annual meetings with others, to review project schedules and address any problems and, if necessary, these issues can be provide a regular forum for discussing upcoming projects. elevated to upper management. Several of the DOTs noted These regular meetings are in addition to case-by-case proj- that although they do not always agree with the SHPO's ect consultations. The Wisconsin DOT has a Native Ameri-

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13 can liaison committee consisting of 11 state tribes and 4 DOT The Louisiana DOT has a PA with the Caddo Nation for proj- representatives. The committee, which meets two to three ects in those parishes identified as areas of concern to the times a year, discusses concerns of both the DOTs and the Caddo Nation. The development of this PA resulted from the tribes. One important issue that was resolved by this liaison Louisiana DOT's participation in the Advisory Council's committee was the development of a protocol for the treat- Pilot Study for Tribal Consultation (which has been can- ment of burials encountered during archaeological studies. celled and was not completed). During this study, Louisiana The committee also provided an opportunity to build trust identified the parishes within the state that had the potential with the tribes through face-to-face communication. to contain properties of concern to federally recognized tribes. To streamline the consultation process, some FHWA division offices (e.g., Colorado, Oklahoma, Pennsylvania, The Georgia DOT has developed MOUs with 7 of the Washington State, and Wyoming) have assigned certain 15 nonresident tribes that have historical or cultural links tribal consultation activities to the state DOT. This dele- with the state. The MOUs specify when the tribes are to be gation of activities is always done in close consultation consulted and what types of documents and reports the tribes with the tribes, and FHWA ultimately remains responsible want to review. The MOUs were developed through corre- for government-to-government consultation efforts. This spondence and telephone calls with the tribes, as well as delegation to the state DOTs has resulted in improved and through meetings with some of the tribes. The DOT also con- continuous communication with the tribes, because state tacts all tribes quarterly to see if the consultation process is DOT staff is usually larger than FHWA's, and DOTs have working well and meeting the tribes' needs. Participating the expertise in both tribal consultation and archaeological tribes receive the state's Transportation Improvement Plan investigations. The FHWA state division offices often do each year and are given an opportunity to comment on the not have this expertise in-house. plan, indicating which projects may be of concern to them. The Georgia DOT notes that these MOUs have saved the The primary effective practices associated with tribal con- department money and time, reducing the amount of docu- sultation, highlighted in the literature review and survey, mentation sent to the tribes and streamlining what the agency include needs to do in terms of tribal consultation. Other states that have MOUs with tribes include Iowa and Oklahoma. PAs, Memoranda of understanding (MOUs), Development of MOUs with Iowa's nonresident tribes Pre-project consultation, and came out of a conference held in Ames, Iowa, in May 2001, Tribal summits and conferences. which focused on consultation issues and needs. The DOT provided lodging, meals, and mileage reimbursement for con- TxDOT has PAs with 12 tribes, 10 located outside the ference participants. Approximately one-third of the 27 invited state and 2 in-state. The PAs stipulate when the DOT is to tribes attended the conference. A follow-up seminar was held consult with a tribe and which types of projects require con- to provide tribes with information about Iowa DOT's planning sultation. For example, under the PA with the Tonkawa Tribe and construction processes. This seminar included a field trip (4), the DOT directly coordinates with the tribe on behalf of to two ongoing archaeology data recovery projects. Similar FHWA, with FHWA approving all outcomes. The agency tribal summits have been held across the country in Idaho, contacts the tribe only when a site with Native American arti- Minnesota, New Mexico, Pennsylvania, and Washington facts has been found in an area of concern to the tribe. The State. In September 2003, the Pennsylvania FHWA and DOT PA also clarifies for the tribe TxDOT's consultation process hosted an Intertribal Summit on Section 106 issues. The pri- on evaluating National Register eligibility, effects assess- mary goal of the summit was to establish a foundation for ments and mitigation, and clarifies for the agency tribal pref- future consultation with nonresident, federally recognized erences for consultation about discoveries of human remains. tribes who had ancestral lands in Pennsylvania (18). Traveling outside of the state, TxDOT met with the tribe to initiate the development of this PA. The use of this PA Georgia DOT's New Echota Traditional Cultural Prop- reduces and focuses consultation on projects truly of concern erty Study is an example of a proactive, pre-project tribal to the tribe. Before the PA, TxDOT consulted annually with consultation that involved archaeological investigations (18). the Tonkawa Tribe on each of the department's approxi- New Echota was the first capitol of the Cherokee Nation, dat- mately 1,000 projects (4). A copy of this PA and other exam- ing from 1825 to 1838. This site is a National Historic Land- ple agreements between DOTs and tribes are available on mark. The Georgia DOT had long-term plans to replace two AASHTO's website on tribal consultation (18). bridges and conduct road improvements near New Echota. In anticipation of these future projects, FHWA implemented a The Minnesota and Rhode Island DOTs have PAs with study to assess the site's traditional cultural significance. His- tribes similar to the ones in Texas. The Rhode Island DOT torical research, archaeological investigations, and ethno- PA with the Narragansett THPO applies to transportation graphic studies were used to define this potential traditional undertakings that have "no effect" on historic properties (4). cultural property. The study involved extensive consultation

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14 with three federally recognized Cherokee tribal govern- project. TxDOT did not anticipate that any burials remained ments. The three tribal governments were appreciative of the because of extensive avocational and professional excava- proactive consultation and, as a result, developed a good tions at this site in the past. As part of the consultation working relationship with the DOT and FHWA. process, the Caddo commented on the project's effect on the site and on the resulting mitigation effort (additional burials Another example of the Georgia DOT's innovative tribal sites were found). The tribe also suggested wording for a consultation efforts involves a roadway widening project Texas Historical Commission state highway marker near the through the Etowah Valley Historic District in Bartow site to commemorate the Caddo that had lived in the area. As County. The DOT and FHWA determined that the proposed part of the mitigation effort, the Caddo were provided the project would not adversely affect the district. The Eastern opportunity to perform all necessary ceremonies at the ceme- Band of the Cherokee Indians (EBCI), however, believed tery. Currently, the Caddo are in the process of negotiating that the district could be indirectly affected by increased res- an agreement with the state and the U.S. Army Corps idential development resulting from the road widening. The of Engineers (USACE) for the reburial of the remains at a EBCI (who reside in North Carolina) was willing to accept set-aside Caddo cemetery on USACE property. The tribe the proposed improvements provided the county implement considers this project an excellent example of successful a plan to limit development in the historic district or develop consultation. a plan to minimize impacts to archaeological resources in the district. Because of EBCI concerns, the DOT made a com- Cast also described the tribe's relationship with the mitment to facilitate development of an MOA between Bar- Arkansas Highway Department and FHWA. tow County, the EBCI, and the Muscogee (Creek) Nation of Oklahoma, requiring archaeological surveys on all new pri- The folks that work for these two agencies are unique. From vate development within the historic district. The county also the very beginning of our consultations with them, they have amended its zoning ordinance to recognize both the impor- gone far above and beyond what may have been required for tance of the Etowah Valley Historic District and the need for the Section 106 process. They have involved the Nation in training workshops, face-to face meetings (here at the tribal archaeological survey and tribal consultation before any pri- complex and there), on-site tours of the highway projects and vate development activities. The long-term preservation ben- archaeological sites that may be impacted, and have always efits of the MOA and zoning ordinance amendment extend asked for our input at every juncture of the process (R. Cast, well beyond the immediate road improvement project, and personal communication, 2004). serve as examples of how innovative approaches to consul- tation can be successfully incorporated into the project devel- The ShoshoneBannock Tribe in Idaho also stressed the opment process. importance of continuous and effective communication. On the Bear River Bridge Replacement project, FHWA, Idaho The literature search and survey highlighted several addi- DOT, and the tribe's Cultural Resources Office communi- tional innovative approaches to tribal consultation. For cated by means of letters, telephone conversations, and meet- example, for one project, the Pennsylvania FHWA division ings throughout the duration of the project. The tribe's office created a limited-access website that reports on the sta- cultural resources staff also met with multiple departments tus of ongoing excavations that involved burials. Access is within the agency, in addition to the project's archaeological limited to ACHP, tribes, SHPO, DOT, and FHWA. The web- contractor. The tribe noted that this continual communication site allows key parties to have immediate and equal access to resulted in the agencies becoming more sensitive to and the results of fieldwork. FHWA also promptly posts meeting respectful of the traditions and history of the Shoshone minutes on the website. FHWA notes that the website has Bannock Tribe. been very effective and streamlines the consultation process. In another example, the California Department of Trans- The Wichita and Affiliated Tribes of Oklahoma described portation (Caltrans) regularly requests Native American their involvement with the Kansas DOT on a project in input on all phases of archaeological investigations. In some Arkansas City, Kansas. The tribe's historic preservation rep- cases, reports or chapters in reports are written by tribal resentative, Virgil Swift, noted that the project involved an members and incorporate traditional knowledge and con- archaeological site to be affected by a highway and levee temporary ethnohistories, linking archaeology to present day improvement along the Arkansas River. The Kansas DOT ini- tribal descendants. tially met with the Wichita Tribe at the Tribal Complex in Anadarko, Oklahoma, to address Wichita tribal issues. Not all As noted in chapter one, several tribes were contacted tribal issues were addressed by the DOT, however, because of about this synthesis study, and six responded. Robert Cast, the many competing interests involved with the project, and THPO of the Caddo Nation of Oklahoma, provided one Swift felt that the agency did not live up to some agreements example project. Cast notes that the development of the PA that were made with the tribe. In general, however, the between TxDOT and the Caddo Nation was triggered by a Wichita Tribe believed that its concerns were met. The tribe pending archeological project at a cemetery associated with sees the project as a success, because the project was com- the Caddo, located in the right-of-way (ROW) of a widening pleted, it helped the economy of the Arkansas City area, and