A Guidebook for Successful Communication, Cooperation, and Coordination Strategies Between Transportation Agencies and Tribal Communities (2011)

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103 1.1: Communication – Presentations Supporting Material: a. Definition of Communication b. Definition and examples of Presentations c. Case studies on Presentations d. Lessons learned on Presentations e. Recommendations on Presentations Lessons Learned: • Presentations can be an effective strategy regarding cultural competency, land ownership and monetary issues. How- ever, there was no moderate agreement or consensus on the success of this strategy when dealing with the protection/ preservation of resources, confidentiality, or sovereignty issues. • Presentations do not replace discussions and are only a starting point for discussions. • Presentations are effective when information presented is factual, like specific regulations and laws. • Presentations can be helpful for local agencies to provide basic understandings of tribal rights, consultation require- ments, and roles and responsibilities. • Issues presented must be on the general level and not tribe specific. • Traditional Cultural Properties (TCP) cannot be discussed outside of the tribe, clan, medicine society, or other group that attaches significance to the resource. • Presentations allow groups with differing opinions access to the same data, and often result in a better understand- ing of issues and solutions as a result of discussion follow- ing presentation. • Presentations are appropriate for discussions when tribes are remotely located and can be conducted without face- to-face interaction, i.e., conference call, webinar, Web sites. • Successful presentations have been made on cultural sen- sitivity and government-to-government relations training especially when jointly presented by tribal and environ- mental staff to project development teams and agency management. • Each individual tribe is the one that understands its cul- ture, tribal-resources, sensitive matters, sovereignty issues, land ownership and monetary issues. • Land-based and non-land based tribes will have different issues depending on their specific cultures. • In some states, federally-recognized tribes do not reside in the state, which makes communication difficult. WEB-N would be helpful to augment emails and phone calls. • Face-to-face discussion is more effective, especially with regard to sensitive issues. Need to also understand that some tribally sensitive issues are just not open to discussion at all. • Presentations can be used for staff education or public out- reach or any number of other valuable reasons. • Presentations do not require high level decision makers, even when discussing sovereignty. The appropriate level of representation should be left to the discretion of the indi- vidual tribe(s), and the particular level of consultation for a given discussion or meeting should be made crystal clear. Recommendations: • Presenters must have a strong level of cultural competency. • Pre-approval should be obtained from the tribes, or mate- rials should be developed jointly, prior to presenting on any sensitive issues or disseminating information publicly. • Presentations for the agency/public may be effective when attempting to identify the presence of Traditional Culture Properties concerns. These should be conducted in the early planning stages. • Tribal issues require that the agency involved treat tribal concerns with respect. Using formats of communication and/or presentations that are common within the tribal A P P E N D I X E Strategy-Specific Implementation Plans

culture is more important than using “standard” presenta- tion formats. The level of sophistication of the presentation should be geared to the audience attending. • Areas that have a cultural context are a series of complex relationships that cannot be fully explained in a presenta- tion situation. • Presentations can be used to describe to DOT staff why certain issues/practices/etc. are sensitive and cannot be discussed. • When used, presentations should be short, interactive and allow for discussion. • Presentations’ primary function should be for providing visual aids. • Generally, tribal officials would rather meet in the field as opposed to sitting down at the table to discuss abstract ideas. 1.2: Communication – Data Collection and Analysis Supporting Material: a. Definition of Communication, b. Definition and examples of Data Collection/Analysis c. Case studies on Data Collection/Analysis d. Lessons learned on Data Collection/Analysis e. Recommendations on Data Collection/Analysis Lessons Learned: • While data collection and analysis is viewed as an effective strategy for monetary issues, there was neither moderate agreement nor consensus about the success of this strategy in regards to cultural competency, protection/preservation of tribal sensitive resources, confidentiality or sovereignty issues. There was moderate agreement but no consensus about the use of data collection and analysis on land owner- ship issues. • Data collection is a fundamental, but often very sensitive element of transportation planning, particularly as it applies to cultural resources and traditional practices. • Data collection and analysis can be a strategy appropriate for all parties but only if that collection, analysis and distri- bution of data is pre-approved by appropriate tribal lead- ers and elders and handled exactly the way the tribe desires. • Data sharing systems are only appropriate in terms of dis- seminating project planning information, such as project location, descriptions, and schedules. • Each individual tribe is the one that understands their cul- ture, tribally-sensitive resources, sovereignty issues, land ownership and monetary issues. Although governments should understand these issues, many remain unidentified. • Land-based and non-land-based tribes will have different issues depending on their specific cultures. • Effective communication is based on reliable, accurate data. • Disclosure of ownership and management issues should be on par with obligations of transparency for other govern- mental entities, unless it involves sensitive traditional resources or customs. • If there is a dispute among tribal and non-tribal parties on ownership, the collection and analysis of data may vary. A smaller tribe may not have the financial or qualified person- nel resources to undertake the work; they may choose to hire a consultant or choose to allow another party to undertake the work on their behalf. • Cannot presume that all tribes have systematically collected ethnographic information. Tribes should be consulted as to their knowledge of data collected by non-tribal sources and whether or not they have any concerns or issues with it. Neither data from state nor tribal sources should not be automatically rejected or discounted. Recommendations: • While collecting information, understanding cultural dif- ferences and having agreements in regard to confidential- ity are critical in getting necessary information. • Data collection on tribal issues needs to be performed by either tribal personnel or a professional retained by the tribe. • Tribes must be clear about the use of the data, terms of access, distribution and who maintains/controls the data. • Data collection and dissemination works best for those items not subject to interpretation (e.g., what was found during a right-of-way survey). 1.3: Communication – Standards and Handbooks Supporting Material: a. Definition of Communication b. Definition and examples of Standards and Handbooks c. Case studies on Standards and Handbooks d. Lessons learned on Standards and Handbooks e. Recommendations on Standards and Handbooks Lessons Learned: • As a communication strategy, standards and handbooks can be a useful strategy for land ownership issues. There was moderate agreement but no consensus on the use of this strategy on sovereignty issues. There was no agreement and no consensus on utilizing this strategy for cultural compe- tency, protection/preservation of tribal sensitive resources, confidentiality, or monetary issues. • Standards and Handbooks’ ‘one size fits all’ approach is ineffective because it does not recognize tribal cultural sen- 104

sitivity, the differences between individual tribes and the geographic differences. • Information contained in standards and handbooks can only be used as a starting point to communication when explain- ing parts of the subject that can be captured in factual terms. • Publication of standards and handbooks should not replace consultation protocols that are established collaboratively between the parties. However, such standards may be help- ful in sharing information on what issues are of particular importance to the parties such as limitations on funding. • They are relatively good as a product internal to a state DOT since they are generally developed and used by DOT staff to assist in gaining knowledge on tribal consultation and issues related with the consultation process. • Tribes prefer direct interaction processes as opposed to written procedures and standards. • Standards for construction of transportation facilities already exist. • Tribes that operate as THPO’s may have their own standards and handbooks. When the usual guidance is not enough to complete a project, develop an MOA or PA. • Face-to-face consultation is more effective than a simple handbook. Recommendations: • Tribes and other stakeholders need to be involved when standards and handbooks are being developed, so that tribes can provide guidance on what can appropriately or sensi- tively be presented. This involvement can also assist in identifying contacts for additional guidance when certain resources or concerns are encountered. • Standards and handbooks could prove to be an effective communication tool to educate transportation agencies about the complexity of sovereignty, land ownership and funding issues. These would not work as well when com- municating transportation needs to tribal governments and people. • Standards and handbooks need to be presented in a cultur- ally competent manner acceptable to all involved parties. Each tribe is different, requiring different procedures, pro- tocols, approaches, and issues. • These documents should be developed primarily by the DOT when the subject matters focus on transportation engi- neering issues such as policies, practices and procedures. • Development of handbooks and standards works when everyone has the same frame of reference. In the case of states the standards are different than tribes’ standards. BIA and the tribes use different rating systems, funding systems, and operational systems than most of the states. • Standards and handbooks should never define consulta- tion; they should provide ideas and guidance and perhaps serve as a conduit through which individual programs and professional relationships are formed. 1.4: Communication – Distribution of Newsletters/Bulletins Supporting Material: a. Definition of Communication b. Definition and examples of Newsletters/Bulletins c. Case studies on Newsletters/Bulletins d. Lessons learned on Newsletters/Bulletins e. Recommendations on Newsletters/Bulletins Lessons Learned: • Newsletters and bulletins are not an effective communication strategy for cultural competency, protection/preservation of tribal-sensitive resources, sovereignty, or land owner- ship. This strategy can be successful with monetary issues. • There is general agreement that reliance on such mass distri- bution methods cannot be the primary mode of communi- cation, nor can they replace more personal, one-on-one and small group face-to-face conversations. • As with other communication strategies, information on sensitive issues must be handled in a culturally appropriate manner and must be approved by the tribes. • Newsletters tend to be limited because they are not cost effective. Publication and distribution costs are expensive and can often be labor intensive. • Newsletters are viewed by some to be only appropriate for information on new initiatives and policies, not on specific projects when timely information distribution is needed. • Newsletters and bulletins may be viewed as propaganda from the state or as anti-collaborative or too impersonal. • Effectiveness is difficult to gauge due to lack of information on utilization rates of recipients. • Newsletters and bulletins cannot be relied on as the sole source of information sharing because there may be liter- acy and comprehension issues. • Newsletters and bulletins can be used internally by tribes to communicate with tribal members. • Newsletters and bulletins may be a tool for keeping DOTs and tribes in contact with each other. Recommendations: • When utilizing this strategy, it is necessary to find out who the audience is within the tribe (executive government, cultural resources, planning) and what form of newsletter/ bulletin should be used (electronic or paper). • Information must be written in a culturally competent manner. 105

• Information about culturally sensitive issues and practices must not be distributed. • If tribal information is being distributed, it must be pub- lished by the non-tribal agencies as written. • Separate newsletters on transportation topics are not nec- essarily needed. Give consideration to including articles in established tribal newsletter. • Articles should be short and to the point. 1.5: Communication – Mailings with Response Forms Supporting Material: a. Definition of Communication b. Definition and examples of Mailings/Response Forms c. Case studies on Mailings/Response Forms d. Lessons learned on Mailings/Response Forms e. Recommendations on Mailings/Response Forms Lessons Learned: • Mailings are not considered as an effective communication strategy for any tribal-related issue. Mailings could be a convenient way to obtain feedback from tribes but should not be considered the only form of feedback nor should it be in lieu of face-to-face communications. • This can be a good strategy when used electronically, but monitoring success has shown that this strategy is not fully utilized by the tribes. • This strategy is viewed by some as too impersonal and could be limited by literacy and cultural comprehension concerns. Consequently, this could introduce selection bias into the response demographics, and, subsequently, the evaluation of returned comments. • Mailings do not contribute to collaborations. • This strategy is only appropriate to determine if a tribe wants to be involved in a particular DOT project and/or participate in a consultation process. • Feedback shows that some entities believe that mailings should be simplified (yes/no questions) while others suggest that mailings are oversimplified and do not treat transporta- tion and culturally sensitive issues appropriately. • Some entities limit the use of mailings to EIS/EA comment dissemination only. Recommendations: • A cover letter should be included in the mailing which sum- marizes the project (area, phase, etc.) as well as deadlines for responses. • Mailings with response forms are not appropriate for issues related to sovereignty and culturally sensitive issues. • Mailings should be sent as a first step and follow up should be performed. • If such an approach was sanctioned by a tribe and directed to an audience that the tribe wanted to be polled in that way, it could be an effective strategy. • Mailings are a good step for making the consultation process easier if wanted by the tribe. 1.6: Communication – Tribal Moderator/Mediator Supporting Material: a. Definition of Communication b. Definition and examples of Tribal Moderator/Mediator c. Case studies on Tribal Moderator/Mediator d. Lessons learned on Tribal Moderator/Mediator e. Recommendations on Tribal Moderator/Mediator Lessons Learned: • A tribal moderator is an effective communication strategy for dealing with cultural competency, protection/preservation of tribal-sensitive resources, confidentiality, and sovereignty issues. There was moderate agreement but no consensus on the success of this strategy for land ownership or monetary issues. • Tribal moderators are good for establishing relationships, building trust, and diffusing tension. • This strategy can be successful in alleviating communication problems and encouraging one-on-one communication. • Tribal moderators are effective when reviewing working decisions and explaining technical issues to tribal members. • Moderators are sometimes viewed as biased toward the agency that they are employed by. • The position is often more successful when held by a tribal member. • This technique can be effective for large complex (multi- state) projects affecting multiple tribal governments partic- ularly when the moderator is a respected tribal leader from a tribe not affected by the proposed project. Recommendations: • All transportation project stakeholders should be involved in the selection of a tribal moderator. • Moderator selection is important to success and should be agreed upon by all involved parties in order to be trusted and supported in that position. 106

• Moderators should be neutral and unbiased. • The role of a tribal moderator should be used to lay the foundation for working relationships with the ultimate goal to not need a tribal moderator. • The moderator needs to be a facilitator more than a mod- erator to ensure successful communication between the entities. • Knowledgeable involvement is necessary. Qualified indi- viduals are a must. 1.7: Communication – Training Supporting Material: a. Definition of Communication b. Definition and examples of Training c. Case studies on Training d. Lessons learned on Training e. Recommendations on Training Lessons Learned: • None from Delphi panelists. Recommendations: • People trained with regards to dealing with Tribal-Sensitive Issues should be tribal members with limited involvement of non-tribal agencies to be effective. 2.1: Coordination – Meetings, Seminars, Summits and Workshops Supporting Material: a. Definition of Coordination b. Definition and examples of Meetings/Seminars c. Case Studies on Meetings d. Lessons Learned on Meetings e. Recommendations on Meetings Lessons Learned: • There is consensus that meetings, seminars, and work- shops can be effective coordination strategies for address- ing cultural competency, protection/preservation of tribal resources, confidentiality, sovereignty, land ownership and monetary issues. • These strategies can be good venues for establishing rela- tionships, building trust, and ‘getting both sides on the same page.’ • These strategies can encourage one-on-one communication but little can be resolved in multi-group settings. • At the conference and summit levels, the strategy can be too time-constrained to be effective. • Strategy could be used as an initial step in the consultation process. • The audience and groups to be included in the venue should be carefully considered when planning the agenda. • Meetings are more private and personal and can be suc- cessful in addressing specific and/or sensitive issues with individual tribes as well as assist in coordination efforts. • Workshops are appropriate for general education. • Summits are generally not results-oriented. • Larger meetings can be successful when issues are dis- cussed in generalities. Recommendations: • Matters concerning cultural competency, protection/ preservation of resources should be handled on a case-by- case, project-by-project basis in smaller settings with more personal interaction. • Tribes should be included in developing the agenda for these functions. • For project-specific issues, meetings should be used and should only include stakeholders to minimize issues with confidentiality. • Meetings should be utilized for agency and Tribe-specific project work. • Seminars should be used for agency-wide training on tribal issues (in cooperation with the tribe). • Summits should be utilized on statewide issues and for high-level government-to-government collaboration. • Workshops are effective on broad statewide issues if issues are discussed in individual workshops. • Field visits can be a good form of meeting with tribal members. • For the most part, these venues apply to concerns that are generic to all tribes and would not be project-specific for any one tribe. • Remoteness can be an issue so these events should be held regionally. • The parties involved in these venues should have the author- ity to make decisions. 2.2: Coordination – Public Involvement Supporting Material: a. Definition of Coordination b. Definition and examples of Public Involvement 107

c. Case studies on Public Involvement d. Lessons learned on Public Involvement e. Recommendations on Public Involvement Lessons Learned: • Public involvement can be an effective coordination strat- egy when engaged in cultural competency and protection/ preservation of tribal sensitive resources. On the other hand, this is not a successful strategy for confidentiality, sover- eignty, land ownership, or monetary issues. • Using public involvement to group tribes with the non- Native American public is not successful. • Public involvement is appropriate for sharing information about project planning and project development but not for communication about issues. • Public involvement is important for successful transporta- tion projects on tribal lands because it involves tribal community participation which is a traditional form of consensus building in Native American societies. • Public involvement can be useful in educating the public in general terms. If tribal issues are discussed, they also need to be in generalities. • Discussing funding issues with the public is generally not effective. • Monetary issues are better solved with a few high ranking officials present that can make decisions. • Funding, when it involves matching, should be addressed during the public meeting at various levels, most appropri- ately at the level of the funding agency/municipality. Recommendations: • Public Involvement meetings are not appropriate to discuss tribally-sensitive issues such as the protection and confiden- tiality of culturally important/significant sites, government- to-government relations, and treaties. • Public involvement meetings should be held early in the project lifecycle. • Public involvement meetings are important if they are held on tribal lands. • Presentations at any public involvement occasions must be mindful of confidentiality concerns. This type of activity is useful for involving individual citizens in the transporta- tion project, but it is not a substitute for more formalized government-to-government relationships. • Pre-approval must be obtained from tribes in order to dis- cuss culturally-sensitive issues in a public forum. • Public involvement strategies can be useful for identifying stakeholders in a project, but it is not a strategy for facilitat- ing coordination with tribes in project planning. • Tribal members are usually open with their thoughts or ideas, but in accordance with traditional customs, food or other giveaway perks help to get them to the event. • Tribes should be offered or provided a reasonable oppor- tunity to participate in planning the agenda. 2.3: Coordination – Tribal Consortium Supporting Material: a. Definition of Coordination b. Definition and examples of Tribal Consortium c. Case studies on Tribal Consortium d. Lessons learned on Tribal Consortium e. Recommendations on Tribal Consortium Lessons Learned: • Tribal consortiums can be an effective coordination strategy for cultural competency issues. There was moderate agree- ment but no consensus on the usage of this strategy for sovereignty issues. There is no moderate agreement or con- sensus on the use of this strategy for protection/preservation of tribal sensitive resources, confidentiality, land ownership, or monetary issues. • At a statewide level, tribal consortiums can be an effective strategy by fostering relationship building. • Concept can be difficult because of complex relationships between tribes in a state. • Consortiums have been successful for producing key legisla- tive initiatives when focused on shared resources, resource protection and economic development. • Can be difficult to constitute a tribal consortium when tribal recognition status differs among tribes within the state (e.g., federally-recognized vs. state recognized vs. non- recognized). • Consortiums are not effective when tribes have different cultural outlooks and they do not necessarily recognize government-to-government relations. • Issues must be discussed in generalities. • Particularly in large land-based tribes, consortiums can be appropriate for discussing specifics such as funding and lobbying. • Strategy can be good when a project concerns several tribes. • In some regions, tribes do not want to be grouped together with other stakeholders. • The ability to discuss issues is important to the tribes in a consortium. The group is a powerful entity, and individuals can make concessions to ensure the success of the group. At times, a consortium can work through issues with a single tribe representing the will of the group, and reporting back 108

to the group, thus effectively streamlining the coordination process. • This strategy can streamline the transportation project planning and development processes. • This venue can be good for education but not as good for individual attention. Recommendations: • Tribes have different beliefs (ceremonies, burials, site pro- tections and others), which results in different treatment protocols. These differences may impact the effectiveness of consortiums. • The consortium should not be considered a decision- making body. • Consortium may only work if the tribes suggested it and it is perceived as a tool to be used at their discretion. 2.4: Coordination – Grants/Loans for Funding Supporting Material: a. Definition of Coordination b. Definition and examples of Grants for Funding c. Case Studies on Grants for Funding d. Lessons Learned on Grants for Funding e. Recommendations on Grants for Funding Lessons Learned: • Loans for funding are not an effective coordination strat- egy for working on issues with tribes. Loans do not build relationships or trust particularly for those tribes who have not had positive government-to-government relations in the past. • Loan money is often tied to specific agendas depending on the source of the loan. • Loans hardly ever work to the benefit of both parties. • The effectiveness of loans and grants to be used to coordi- nate efforts is limited since many entities are not set up to apply for and use these types of funds. Recommendations: • Loans need to be provided with “no strings attached.” • There should be grants instead of loans. • Readily available tribal programs from agencies like the BIA and the National Park Service should be investigated and expanded as an alternative to loans. • Sharing should be done through a cooperative agreement. 2.5: Coordination – State Tribal Liaisons/Coordinators Supporting Material: a. Definition of Coordination b. Definition and examples of Tribal Liaisons and Coordinators c. Case studies on Tribal Liaisons and Coordinators d. Lessons learned on Tribal Liaisons and Coordinators e. Recommendations on Tribal Liaisons and Coordinators Lessons Learned: • Tribal liaisons/coordinators are a very effective strategy for addressing all tribal transportation-related issues. There are many models for the tribal liaison position, its responsibil- ities, and its relationship between the agency and tribes. • As a single point of contact for the tribes, the tribal liaison is a reliable source of information and helps tribes that have new Tribal Historic Preservation Officers (THPOs) get the lay of the land. This liaison is also a good resource for new Department hires that need to know how to coordinate with tribes on individual projects. • The tribal liaison serves as a “go between” and helps estab- lish relationships. Since the consultation process is more relationship building, the tribal liaison must have an under- standing of the interests and cultural context of the tribes. • The tribal liaison serves to connect people in an agency to the appropriate tribal representative, and provide coaching and facilitates as needed. • Success depends on the person chosen for the position. • The liaison needs to build a relationship with the tribes and demonstrate that they genuinely understand the interests and cultural contexts of the tribe. Recommendations: • The position should be associated with the director of the agency for which he/she works so that working with the liaison is viewed as a “superior to superior” relationship; the higher level the liaison is in the hierarchy, the better success the liaison is perceived to be. • A tribal liaison is more credible if the person is of Native American descent. If not, they still must be an advocate for tribal initiatives to optimize cooperation from the tribes. • Tribal liaisons can be helpful in improving cultural sensi- tivity at the agency level. However, they should have some authority to act on behalf of the tribes and/or the agency in order to be effective. • All agency staff need to consider themselves as “tribal liaisons.” 109

2.6: Coordination – Formal Agreements Supporting Material: a. Definition of Coordination b. Definition and examples of Formal Agreements c. Case studies on Formal Agreements d. Lessons learned on Formal Agreements e. Recommendations on Formal Agreements Lessons Learned: • Formal agreements are an effective coordination strategy for protection/preservation of tribal sensitive resources, confidentiality, sovereignty, land ownership and monetary issues. There is moderate agreement but no consensus that formal agreements are a good strategy for cultural compe- tency issues. If a tribe has not had positive government-to- government background in the past, then formal agreements are viewed with lack of trust. For this reason, cultural com- petency did not have consensus on the formal agreement strategy. • Generally, formal agreements are with individual tribes, which can facilitate government-to-government relationships. • All signing parties must understand and agree to the process and issues addressed in the agreement as well as establish expectations, joint responsibilities, timeframes and appro- priate contacts. • Agreements can streamline the consultation process. • Agreements are a necessary result of negotiation. • Tribes can be skeptical of trusting written agreements because issues in the past (failure to fulfill treaty obligations) cloud efforts made today. • Some states have seen no difference in working with tribes that have signed agreements with the state and those that have not. • Agreements have been successful for treating funding issues. • Actions and keeping one’s word are more important. • Formal agreements on cultural competence are beneficial to the western culture. It is important to western culture that protocols are written out, but from a tribal perspective it is just common courtesy and respect that govern one’s conduct. Recommendations: • Agreements can only work if there has been on-going communication and trust building prior to signing the agreement. • There is a culturally significant difference between tribes and agencies that needs to be honored. Sufficient time must be allowed in the decision making process to gain respect among the stakeholders and facilitate coordination. • A formal agreement will have little effect on cultural com- petency unless there are other commitments to address this at the transportation agency level. • Formal agreements can be difficult to negotiate because there is the inherent conflict between state sovereignty and tribal sovereignty. 2.7: Coordination – Regional or State-Level Conferences Supporting Material: a. Definition of Coordination b. Definition and examples of Regional/State level Conferences c. Case studies on Tribal Regional/State level Conferences d. Lessons learned on Regional/State level Conferences e. Recommendations on Regional/State level Conferences Lessons Learned: • Regional and state conferences can be a successful coordi- nation strategy when dealing with cultural competency, protection/preservation of tribal sensitive resources, and sovereignty issues. However, there was no moderate agree- ment or consensus that this strategy would be effective for confidentiality, land ownership, or monetary issues. • Conferences should be used for general discussion, with fol- low up meetings scheduled for individual discussions with each tribe. • This strategy is best used as a first step for building relation- ships and getting to know stakeholders rather than achieving specific tasks. • These venues are useful for networking, developing face-to- face relationships, identifying issues, and sharing informa- tion on agency programs and projects. • This strategy works well if specifics of culturally sensi- tive issues are not discussed and are only dealt with in generalities. • Conferences can be difficult when tribal recognition is “mixed” within the state (federally recognized, state recog- nized, non-recognized). • Conferences tend to be attended by a majority of non- tribal representatives and this discourages tribal input. • Large conferences are not results oriented. • Conferences are not good for coordinating anything. They are for delivering information. • To address issues that are sensitive to the tribes, they pre- fer small groups and only those they have dealt with closely and in whom they have a high level of trust. 110

• General discussion is important if the strategy is aimed at training state agencies that the law allows for confidential- ity protection. However, if it’s at a project level, generali- ties will need to be limited and more specifics provided. Recommendations: • Conferences are the appropriate venue only if the tribes and the transportation entities are in agreement with the participants and the topics prior to the event. • While most transportation issues exist at the local level, con- ferences could be helpful with regional or statewide issues. • Conferences are best if hosted at tribal locations. • A third party is needed to administer a post evaluation of the event to measure empirical results. • Tribal issues are unique to each tribe so even regional level conferences may not be personalized enough to be effective. • Tribes should have the final authority to make sensitive information available, or to withhold information and address it in private with the FHWA decision maker, as the tribes see fit. 3.1: Cooperation – Planning Organizations Supporting Material: a. Definition of Cooperation b. Definition and examples of Planning Organizations c. Case Studies on Planning Organizations d. Lessons Learned on Planning Organizations e. Recommendations on Planning Organizations Lessons Learned: • Planning organizations are viewed as a successful coop- eration strategy for issues such as cultural competency, protection/preservation of tribal sensitive resources, sovereignty, land ownership, and monetary issues. The one exception is confidentiality issues. Confidentiality will always be present and hard to deal with when increasing the number of participants in the planning process. • Planning works well when tribes are treated as truly equal partners whose needs are considered by other partners. • Good for planning but not for engineering and construction. • Partnerships between local/state and federal and tribal gov- ernments can improve the statement of tribal needs and methodologies for achieving common transportation needs. • Good for improving statements of needs and the method- ologies for achieving those needs. • Good for open issues but not for specific, culturally sensi- tive issues. • The focus should be on the development of processes and protocols for avoiding negative impacts on tribes. • This venue can be good for developing cultural compe- tence and awareness of sensitive issues. • General discussion is important if the strategy is aimed at training state agencies that the law allows for confidentiality protection. However, if it’s at a project level, then generali- ties will need to be limited and more specifics provided. • Tribes are reluctant to discuss concerns at the general level; this can lead to late escalations. • Though confidentiality issues are still better discussed on a government-to-government basis, it is still helpful for planning organizations to be aware of the issues. Recommendations: • Tribes have to be equal partners in planning organizations. • Tribes and Agencies need to seek individuals that are best suited for the organization and need to give decision- making power to those individuals on behalf of the groups they represent. • Planning organizations would be an inappropriate entity to facilitate cooperation regarding tribal sensitive matters or sovereignty issues since these are inherently governmental responsibilities. 3.2: Cooperation – Regional Transportation/Transit Districts or Coalitions Supporting Material: a. Definition of Cooperation b. Definition and examples of Regional Transit Districts and Coalitions c. Case studies on Regional Transit Districts and Coali- tions d. Lessons earned on Regional Transit Districts and Coalitions e. Recommendations on Regional Transit Districts and Coalitions Lessons Learned: • Regional transportation/transit districts and coalitions can be an effective strategy for addressing cultural compe- tency, sovereignty, land ownership and monetary issues. Protection/preservation of tribal sensitive resources and confidentiality issues do not lend themselves to this strategy. • Regional coalitions can address project prioritization and funding issues, as well as the larger institutional cultural con- text of agencies. 111

• Coalitions can be a good strategy for identifying stakehold- ers and developing a resource pool. • Tribes can assert leadership in this type of coalition. • This strategy seems more appropriate for issues that revolve around transit, not other transportation issues. • The perception of regional districts or coalitions is that the entities that have the most money will get the most projects. Recommendations: • None from Delphi panelists. 3.3: Cooperation – Resource Sharing Supporting Material: a. Definition of Cooperation b. Definition and examples of Resource Sharing c. Case studies on Resource Sharing d. Lessons learned on Resource Sharing e. Recommendations on Resource Sharing Lessons Learned: • Resource sharing was viewed as an effective strategy for sov- ereignty, land ownership, and monetary issues. There was moderate agreement but no consensus on the use of this strategy for cultural competency or protection/preservation of tribal sensitive resource. Confidentiality issues were viewed as inappropriate for the utilization of this strategy. • Tribes often do not have resources (money, time) to share since they have insufficient funding for programs and projects. • The perception is that whoever has more money gets the projects they want. • Resource sharing allows stakeholders to accomplish more together than separately. • Resource sharing can be successful on cultural resource investigations. • The process is complicated when more than one tribe is involved in a project. • Utilize qualified tribal staff, and manage by competent professionals. • Effectiveness is limited due to an inequality in available resources. • There are risks of using non-tribal funds for studying sensi- tive resources because the outside entities may feel entitled to all the information that is obtained. • If resources are to be shared, then the entities sharing the resources should share the burden of investigating and ana- lyzing the information collected. Recommendations: • All parties should be willing to share resources, both mon- etary and others (materials, staff, etc.). • There needs to be resource sharing when it comes to reim- bursing tribal members for their time and costs associated with consultation and not just on the project-specific level. Lack of travel funds is a significant barrier to participation. • Within agency protocols, barriers need to be removed to allow for reimbursement to different parties to ease the process. 3.4: Cooperation – Investigation of Alternatives Supporting Material: a. Definition of Cooperation b. Definition and examples of Investigating Alternatives c. Case studies on Investigating Alternatives d. Lessons learned on Investigating Alternatives e. Recommendations on Investigating Alternatives Lessons Learned: • The investigation of alternatives is a successful strategy for cultural competency, protection/preservation of tribal sen- sitive resources, confidentiality, sovereignty, and monetary issues. There was moderate agreement but no consensus on the use of this strategy for land ownership issues. • Looking at alternatives is one of the most productive meth- ods to avoid, minimize, or mitigate adverse affects on tribes or tribal lands. • This strategy allows for discussion and the development of a better understanding of issues and how they affect or appear to affect interested parties. • Alternatives are important so tribes do not feel that they are being “railroaded” into just one option already chosen by the transportation agency. • The investigation of alternatives is already part of the envi- ronmental assessment process and should be part of the design concept process. • There are other issues that benefit from and require alterna- tives analysis. Recommendations: • Alternative review works best when both agencies are in equal positions in terms of resources and expertise. Current processes do not lend themselves to this method of facilitat- ing communication between the entities. 112

• This strategy can be effective on a project-specific and site- specific basis. • This is the heart of consultation under Section 106 of the National Historic Preservation Act. The consul- tation process goes much smoother and has better outcomes when tribes are involved in identifying alter- natives that will have the least impact on the resources of concern. • Anytime a transportation agency is willing to work with the tribes or other parties to find another alternative, the tribe will generally be more willing to participate. The agency should not come in with a done deal or a preferred alterna- tive. They need to approach the tribe with the project pur- pose and need, have valid discussions about the purpose and need, and, once that purpose/need has been agreed upon, move forward as a team towards the development of viable alternatives. 3.5: Cooperation – Emergency Preparedness Planning Supporting Material: a. Definition of Cooperation b. Definition and examples of Emergency Preparedness Planning c. Case studies on Emergency Preparedness Planning d. Lessons learned on Emergency Preparedness Planning e. Recommendations on Emergency Preparedness Planning Lessons Learned: • Emergency preparedness planning was viewed as a success- ful strategy when dealing with cultural competency, protection/preservation of tribal sensitive resources, sover- eignty, and monetary issues. There was moderate agreement but no consensus that these initiatives would be effective with land ownership issues. Lastly, there was no agreement and no consensus on the utilization of this strategy for con- fidentiality issues. • Elements of a tribal MOU for disaster mitigation can include cost sharing and involvement of a local emergency plan- ning group where the county and local fire departments are involved that meet quarterly. The plan includes emergency plans with up to date contact numbers and training for those who would be tribal emergency contacts. The tribal emer- gency contact has emergency powers to implement the plan with a call to the tribal president or council chairperson. • Two levels are needed in disaster planning: first the tribal level to coordinate with outside agencies and their resources for on-reservation events; and secondly the tribe as part of the larger community and the potential use of tribal resources in an off-reservation emergency. • Having a catastrophe will make jurisdictions invisible and will develop, at least temporarily, better communication between the transportation entities and tribes. • General discussion is important if the strategy is aimed at training state agencies that the law allows for confidentiality protection. However, if it’s at a project level, then generali- ties will need to be limited and more specifics provided. Recommendations: • An agreement should be established to cover urgent/ immediate correction for Federal Emergency Management Agency (FEMA) projects that facilitate emergency vehicles and other service vehicles. Permanent repairs should then go through the appropriate consultation process, just on an accelerated schedule. • In disaster planning, the tribal law enforcement entities are more involved and often lack the resources for the follow- up efforts required for good planning. • Oftentimes, tribal institutional cultures are not set up in the same manner as states, which inhibits the planning effort. • Emphasize the role of tribes in devising appropriate disaster plans to protect the confidentiality of resources. • Disaster planning should address how to protect public safety during catastrophic events, and any confidentiality issues need to be mitigated so that responders can act without having to concern themselves with confidentiality issues. 113