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18 4.1 Overview The 3Cs between transportation agencies and tribal com- munities are needed in order to facilitate successful trans- portation projects. To achieve mutually beneficial results, incorporating the 3Cs into practices is important for estab- lishing a collaborative environment that facilitates relation- ships among stakeholders and project delivery. Practices may differ when a transportation project involves tribes because they are more complex due to the government-to-government relations and tribal cultural protocols. In recent years, the transportation sector has been receptive to the need of facilitating collaboration among all stakehold- ers with the implementation of context sensitive solutions (CSS) planning and design processes. CSS can be defined as . . . a collaborative, interdisciplinary approach that involves all stakeholders to develop a facility that fits its physical setting and preserves scenic, aesthetic, historic, and environmental resources. (35; pp. 10-11). While CSS practices seem successful in establishing a col- laborative environment (36), they are too general to apply to projects when tribal nations are among the stakeholders. The uniqueness of the relationship between tribes and federal government requires a specific approach toward the imple- mentation of 3C concepts. Executive Order 13175 issued by President Bill Clinton describes and recognizes the unique relationships that are present between the federal government and tribal govern- ments. This executive order requires that the federal govern- ment consult with tribes on âthe development of Federal policies that have tribal implicationsâ (37). It also recognizes the relationship between the federal government and sover- eign tribal governments as a government-to-government relationship. In addition, the National Historic Preservation Act requires the investigation of historical sites and cultural properties of concern to tribes (38). As a result, when tribes are among the stakeholders, trans- portation projects endure a multifaceted project environment as additional institutional processes and governmental proto- cols are introduced. Government-to-government relation- ships between tribal and federal, state or local governments require special considerations. Many of these issues, like tribal sovereignty, can be unique to the tribal transportation con- text. However, other issues, such as land ownership or project funding, can be encountered on non-tribal projects, but in a tribal transportation project these issues are much more com- plex due to sovereignty and other tribal-specific issues. Additional issues contribute to the complexity of tribal transportation initiatives as each tribe has its own culture. This cultural diversity challenges the communication processes. To overcome this challenge, members of the project team must be culturally competent (39). The concept of cultural compe- tency explains why many collaboration practices developed for traditional contractually regulated relationships are not adaptable to this context. Communication with tribal repre- sentatives must follow specific protocols which are specific to the tribe(s) involved. 4.2 A Ladder to Collaboration: Identification of Issues and 3Cs Practices To build a foundation for success for tribal transportation initiatives, 3Cs practices must be implemented to allow project stakeholders, including tribal communities and different gov- ernmental agencies, to collaborate on transportation initia- tives. With the assumption that practices can be utilized in conjunction with one another, project stakeholders can build a ladder that leads to a collaborative environment and project success. As described in the previous chapter, the existence of intergovernmental networks facilitates the implementation of collaborative practices between tribes and transportation agen- cies because these networks act as enablers for collaboration. C H A P T E R 4 Issues and Communication, Coordination, and Cooperation Practices
To differentiate 3Cs collaborative practices, a definition was identified for each of the 3Cs. Collaboration is dependent upon building relationships from the less formal communica- tion to the more interdependent, intergovernmental relation- ships that often result from cooperation. The 3Cs are defined in Table 1. These operational definitions were contextualized in the tribe-transportation agency context, but they can be general- ized into any entity-to-entity situation. The ladder approach assists stakeholders in depicting the complex process of establishing a collaborative environment when multiple governmental entities are project stakehold- ers, often with differing interests. These differing interests can add to the challenges of collaboration and requires extensive negotiations among stakeholders (40). However, culturally sensitive negotiations can be difficult when differences among stakeholders extend beyond their governmental structure to encompass fundamental culture and operations. In the first step of the ladder, âcommunicationâ requires that project stake- holders share a base knowledge in order to share entity-specific knowledge across agencies (41). Overall, the 3Cs are often cited as the âsoft side of project managementâ and constitute a recurrent theme within proj- ect management. This framework of definitions was devel- oped for projects affecting or of interest to tribes. The Ladder of Collaboration depicts relationship building as an escalat- ing approach that requires additional effort and reward when the entities are increasing interaction from communication to coordination and from coordination to cooperation as shown in Figure 1. To succeed, most transportation projects 19 3Cs Definition Communication between Tribes and transportation agencies Process by which information, data or knowledge regarding issues and projects is exchanged through methods such as speech, writing, or graphics by the transmitting party, so that it is satisfactorily received or understood by the receiving parties. Coordination between Tribes and transportation agencies Process by which representatives of these entities communicate information on how and when each party must act in order to harmoniously work interdependently for the purpose of achieving effective common results. Cooperation between Tribes and transportation agencies Process by which representatives of these entities work together to achieve a common goal or objective in carrying out transportation planning, programming and delivery processes (i.e. state transportation agencies and tribes). Table 1. 3Cs definitions. Figure 1. Ladder of collaboration.
require the implementation of more than one 3Cs concept. To climb each step of the ladder, project stakeholders will design and implement initiative-specific collaboration strate- gies that include a set of 3Cs practices selected to address the underlying issues. In this Ladder of Collaboration, relationship building becomes more formal and institutionalized as the steps progress from communication to coordination, and from coordination to cooperation. In a generic transportation project, it is possible to envision that project stakeholders need to step up to the implementation of these three con- cepts primarily relying on the underlying project context. When the project is of interest to and affecting tribes, the project context layer also acquires additional layers of com- plexity because of tribal-specific issues. For instance, cul- tural competency and sovereignty become integral to the conduct of the stakeholder relationship in a tribal trans- portation initiative. These issues present different chal- lenges for the planning and delivery of the transportation project. No one 3C practice is more important than another. The focus or goal of the intergovernmental relations will determine the nature of practices to be used and the form of any inter- dependent relationship(s) among tribes and federal, state, and/or local governments. Communication is the first step in creating a collaborative environment among project stakeholders through the shar- ing and receiving of information between parties. Cultural competency is essential to interact effectively with people of different cultures. In addition, the relationship between trans- portation agencies and tribes must rely on government-to- government protocols for mutually respectful interaction. This type of interaction may be well-established between rec- ognized tribes and transportation agencies, but it may become an issue itself when the tribe involved in a public outreach process is a non-recognized tribe or a state does not recog- nize sovereignty. The second step for creating a collaborative project environ- ment is coordination. While the communication step focuses on the exchange of information, coordination encompasses the development and adjustment of plans, programs, and schedules among parties to achieve a common purpose. Effec- tive coordination requires communication and information on how and when each party must act together with a com- mitment for following through. The third step on the Ladder of Collaboration is coopera- tion that goes beyond coordination as parties work together to achieve a common goal or objective in carrying out trans- portation planning, programming and delivery processes. As a result, parties would work in conjunction with one another and eventually share resources to achieve success. 4.3 Issues Impacting Tribal Transportation Initiatives Issues impacting tribal transportation initiatives are unique as they evolve from the nature of government-to-government relationships and tribally sensitive resources and practices. Six major issues were categorized independently from the entities and the geographic area involved. However, issues may slightly change according to the specific context (i.e., tribe, state, geo- graphic area). These issues can be addressed by implement- ing appropriate 3Cs practices in a collaborative environment. Major issue categories and their descriptions in the tribal con- text are provided in Table 2. 4.3.1 Major Issue No. 1: Cultural Competency The cultural competency in tribal transportation projects underlies all the other contextual issues. This issue is present independently and may magnify effects from the other issues. Tribes and federal, state, and local governmental agencies may not fully understand each otherâs cultural practices as they pertain to interaction in transportation initiatives. Developing cultural competency results in an ability to understand, com- municate with, and effectively interact with people across cul- tures (either tribal or organizational). Specific issues within cultural competency are: (1) lack of cultural knowledge within the transportation sector; (2) the need for skill development in communicating cultural significance to transportation agen- cies; and (3) the need for understanding of project cultural con- text. Effective interaction and communication requires that the communicating party be competent on the communication means to be used with the receiving party. Some additional examples of cultural competency issues are provided here. Throughout this guidebook, the important role of cultural competence in the collaboration-building and collaboration- maintaining process has been pervasively stressed. The bibliog- raphy lists two documents that provide a comprehensive explanation of this concept (39), and a practitioner insight on some practical aspects (42). Cultural Context on Projects ⢠Potential for cultural conflict exists between the commu- nity and outside officials on a transportation project. ⢠One major challenge in consultation efforts is meeting the individual cultural needs of each community involved in the planning process. Cultural Knowledge ⢠Tribal and local governments do not fully understand each otherâs cultural comprehension on issues. 20
⢠Tribal and local governments do not fully understand each otherâs cultural practices as they pertain to interaction in the transportation process. Skill Development ⢠A major challenge of tribal involvement is communicating cultural significance to transportation agencies. 4.3.2 Major Issue No. 2: Protection and Preservation of Tribal-Sensitive Resources In addition to cultural competency, the initial transportation initiative context layer also acquires different meanings and presents different challenges in regards to the protection and preservation of tribal-sensitive resources. Tribes may consider certain resources to be sensitive and of concern when affected by a transportation project, while local, state, and federal gov- ernments may not recognize the same resources as having the same degree of cultural significance. Resources that may be defined âsensitiveâ by tribes include: (1) natural and biological resources (mountains, rivers, creeks, wildlife, etc.); (2) cultural resources (cultural sites); and (3) historical resources (histori- cally recognized sites). For example, while a site may not be federally recognized as a historical site, it may be considered historical by a tribe. Some additional examples of this type of issue are provided here. Natural and biological resources (e.g., mountains, rivers, creeks, wildlife, etc.)6 ⢠Tribes consider maintaining their quality of life and the state of the environment as high priorities. ⢠Transportation agency decision makers need to hear directly from tribes on important natural resource issues. ⢠Transportation projects may have an impact on biological resources that are considered to be tribally sensitive species, which may differ from federally threatened and endangered species. 21 Cultural Competency Cultural differences between tribes and transportation agencies can make collaborative efforts like communication difficult as agency and individual interaction protocols can differ between parties. Protection/Preservation of Tribal-Sensitive Resources For cultural, environmental, and historical reasons, tribes often consider resources, otherwise not considered sensitive, as needing to be preserved regardless of the need for transportation facilities. Confidentiality of Tribal- Sensitive Matters Cultural practices and historical considerations often limit tribes on the extent of information that they can share with other project stakeholders. It may be that a tribe has knowledge of a historic or cultural property that needs to be protected, but the location of the site is confidential. Sovereignty The federal government recognizes tribes across the nation as separate, sovereign nations, whose jurisdictions and institutional relationships and protocols must be recognized. State/tribal issues such as jurisdictional issues in civil and criminal matters complicate intergovernmental issues. Land Ownership Common land ownership issues like right-of-way can lead to difficulties to project completion. In addition to common issues, consideration must be given to unique land ownership situations in the tribal context, like the management of trust lands by tribes . Funding While project funding issues are also common to all transportation projects, the tribal transportation context leads to different types of funding issues involving multiple sources. Project funding can be provided by the tribe, state or BIA affairs to complete tribal-needs projects. Table 2. Typical issues on projects affecting or concern to tribal communities. 6Under NEPA, transportation projects must undergo an environmental assess- ment and one of the key aspects is the biological evaluation for flora and fauna in the project area. Tribal concurrence on these reports is required and special con- sideration must be given to âtribally sensitive speciesâ that may be different from federal threatened and endangered species.
Cultural Resources (e.g., cultural sites) ⢠Land proposed for a transportation project can have cul- tural significance to tribes, whether it is located on tribal land or not. ⢠Tribal lands contain sacred grounds and sites that must not be disturbed. ⢠Transportation project may be of concern to tribal com- munities that do not have jurisdiction in the proposed area of the project because of cultural significance of resources. Historical Resources (e.g., historically recognized sites) ⢠Tribal lands contain important archaeological and historic sites. ⢠Potential project sites must be evaluated for archaeological significance, and tribes must provide concurrence with the contents of any archaeological investigation through tribal authority. 4.3.3 Major Issue No. 3: Confidentiality of Tribal-Sensitive Matters Confidentiality of tribal-sensitive matters affects areas of concern that cannot be divulged. In considering sites for projects, areas of concern include: (1) natural and biological resources; (2) location of cultural sites or location for tradi- tional practices; and (3) traditional symbols. Details about each of these tribal-sensitive matters are confidential and cannot be shared with non-tribal transportation agency staff. Some addi- tional examples of this type of issue are: Natural and Biological Resources ⢠Some tribal-sensitive resources affected by proposed trans- portation projects may be confidential to the tribe. ⢠Details regarding tribal-sensitive resources often cannot be disclosed to transportation personnel. Location of Cultural Resources ⢠Some cultural resources or sites affected by proposed trans- portation projects must be protected, but the location of such sites may be confidential to the tribe and often cannot be disclosed to transportation personnel. Traditional Practices (e.g., grazing rights) ⢠Planning for tribal involvement needs to be in a manner appropriate to tribal customs and practices. Traditional Symbols ⢠Transportation projects contain artistic aspects (i.e., deco- rative overpasses, retaining walls, landscape, etc.), and there may be a desire to use tribal symbols for this decoration. ⢠Tribal symbols are often used by tribes in order to identify landmarks. ⢠Desired use of tribal symbols in transportation projects may require coordination between tribal communities and trans- portation agencies to ensure appropriateness of such use. 4.3.4 Major Issue No. 4: Sovereignty A fourth major issue for tribes is sovereignty that requires the establishment of government-to-government relations as many projects involve federal, state, or local governments. Jurisdictional issues can be problematic. The federal govern- ment recognizes 562 tribes as sovereign nations, introducing a new level of governmental entity participating in the trans- portation initiative process and a unique dynamic in project execution. Issues regarding (i) jurisdiction, (ii) government- to-government relations, and (iii) institutional relationships and protocols are introduced to the project environment. As a result, the relationship between transportation agencies and tribes must adhere to established government-to-government protocols of mutually respectful interaction. Some additional examples of this type of issue are provided below. Jurisdiction ⢠Tribal jurisdiction has been long-debated, misunderstood, and even overlooked. ⢠Recognition of tribal jurisdiction is key in establishing and maintaining working relationships. Government-to-Government Relationships ⢠Government-to-government relationships are complicated because of past disagreements regarding tribal sovereignty issues. ⢠Cooperative agencies (e.g., Regional Transit District) can increase the difficulty that tribes encounter in protecting their sovereignty, as cooperative decision making may not reflect individual tribeâs needs. ⢠Transportation project completion may require coordina- tion of efforts between tribes and Local, County and Regional Councils of Governments or Metropolitan Planning Orga- nizations in addition to Federal Government. Institutional Relationships and Protocols ⢠Managing intertribal and intra-tribal relationships can be a challenge in tribal involvement. 22
⢠Involvement of local governments, tribes and the general public can be difficult throughout an area that is affected by a proposed transportation project. ⢠Tribes may have less of a say in cooperative decisions, depending on their weighted influence in the decision- making process. ⢠The multitude of tribal governments, with some having limited staff, creates challenges for integrating tribal needs into statewide and regional planning efforts. ⢠Contractor licensing may be required by the state but not necessarily by a tribe. ⢠Likewise, other protocols (such as local-preference hiring practices or tribal-specific licensing) may be required on tribal lands. 4.3.5 Major Issue No. 5: Land Ownership Issues regarding land ownership often add to the difficulty of project execution in tribal transportation projects. The acquisition of right-of-way on tribal lands is a complex and time consuming process and must be done in accordance with BIA and FHWA regulations. The type of land ownership (individually owned, tribally owned, or fee-land purchased) determines the application of laws and regulations. Some additional examples of this type of issue are provided below. Full ownership (including trust lands) ⢠A transportation project may propose the widening of a roadway, which requires additional right-of-way from tribes. ⢠Tribes may not be willing to provide right-of-way without compensation and may not be willing to even with com- pensation, due to cultural significance. ⢠Tribes feel that any grant of right-of-way threatens their sovereignty and land base and often limit the timeframe of the easements granted. Surface Ownership ⢠Conflict may arise in cases where surface ownership is obtained by state DOTs and it is unclear what rights the state possesses with respect to these lands. Mineral Exploration Rights ⢠Conflict may arise when states obtain lands from tribes for a transportation system, and tribes have mineral explo- ration rights on the already developed land. ⢠In Alaska, there is a conflict of authority when it comes to mineral exploration rights. In fact, regional corporations retain subsurface right on land that is under the authority of village corporations (which retain surface rights). 4.3.6 Major Issue No. 6: Monetary Matters Last, monetary matters are common to virtually all trans- portation projects with unique aspects on transportation proj- ects of concern to tribal communities, including: (1) project funding is an issue in all transportation projects because of funding deficiencies and (2) project taxation and other fees can also lead to difficulties in project execution when tax and fee agreements between parties are not executed prior to proj- ect commencement. Some additional examples of this type of issue are provided below. Project Funding ⢠Proposed and needed transportation projects lack sufficient funding throughout the transportation sector. ⢠Tribes lack money for funding tribe-specific transporta- tion needs, and project funding from the Bureau of Indian Affairs can be deficient. ⢠Tribes lack funding or co-funding for transportation projects. ⢠Tribes lack financial capacity and resources to participate in the planning and execution of transportation projects. ⢠Poverty, high unemployment and dispersed populations in tribes increase the challenge of providing affordable, reli- able transportation. ⢠Project budget in many cases is not adequate for public involvement meetings to take place in all concerned com- munities. Project Taxation and Other Fees ⢠Protocols and processes for taxes differ significantly between tribal, local, state and federal governments. ⢠Tribal employment rights and associated fees from the TERO are an additional consideration. ⢠Agreements for tax waivers from tribes for state DOTs may not be reached prior to beginning a project, leading to potential conflicts. ⢠Pre-arranged agreements for tax waivers from tribes for state DOTs may be reached but are not formally regulated, which may lead to conflicts. 4.4 Communication, Coordination, and Cooperation Practices Developing definitions for 3Cs provided the overarching framework for identifying 3Cs practices commonly adopted to mitigate and overcome issues in tribal transportation initiatives. A comprehensive list of these practices has been identified, which may assist in establishing a collaborative environment. Which practice(s) need to be used will depend 23
upon the issue(s) to be addressed, what actions are required by tribal transportation initiatives, and the needs and constraints of the stakeholders. The 19 practices are classified as commu- nication, coordination or cooperation and are listed in Table 3. It is unlikely that any one practice can address all of the dynamics of any one issue involved in tribal transportation projects. Correlating tribal transportation issues and practices can assist in outlining a complex collaboration strategy that includes several practices and corresponding plans of actions and goals. Specifics on the use of these practices are contextu- alized in the 46 case studies that are included in Appendix C of this Guidebook. These case studies can provide guidance in the application of the 3C practices and related issues. 4.4.1 Communication Practices These practices revolve around different methods of exchanging information and tend to be the less formal of the 3Cs. Cultural competency is essential to any communica- tion. Information sharing must be done in such a way that it is sensitive to all tribal issues, including cultural competency, protection and preservation of tribal-sensitive issues, confiden- tiality of tribal sensitive matters, sovereignty, land ownership, and monetary issues. While it is important for stakeholders to understand tribal sovereignty, the intergovernmental relation is often codified in MOUs and other programmatic agreements. Presentations Presentations are a communication tool used to convey information from one entity to another. Information shared can cover areas, issues and concerns on upcoming projects, program or policy changes, or training material. Data Collection Inventories on existing data related to a transportation proj- ect (e.g., information on existing transportation systems, land of cultural significance that can be disclosed, etc.) can be cre- ated and made accessible to transportation agencies and tribal communities. Standards and Handbooks Standards are prescribed by national standard setting organ- izations such as AASHTO and ASTM. Handbooks are concise reference books providing specific information about trans- portation topics. Topics may include information on project planning, permitting, funding programs, and success stories. Newsletters/Fliers/Bulletins Regular newsletters and bulletins are used to keep tribes informed of transportation projects and activities at the state and federal levels. Mailings/Response Forms Mailings with response forms (tear off or attachments) are used to keep tribes informed of current projects and solicit responses on concerns with current and future projects. Tribal Moderator In order to ensure the successful exchange of information between entities, a neutral, third party moderator who is knowl- edgeable in each entitiesâ operations and cultures is designated 24 Communication = information exchange Coordination= information exchange + altering activities to achieve a common purpose Cooperation= information exchange + altering activities to achieve a common purpose + sharing resources Presentations Meetings, Seminars, Summits and Workshops Planning Organizations Data Collection, Analysis, and Distributions Tribal Liaison or Coordinator Resource Sharing Newsletters, Flyers, and Bulletins Public/Tribal Involvement Regional Transportation/Transit District or Coalition Mailings with Response Forms Formal Agreements Investigation of Alternatives Tribal Mediator Grants for Funding Planning for Disaster Preparedness and Concurrent Response to Disasters Standards and Handbooks Regional or State-Level Conferences Training Tribal Consortium Table 3. 3Cs practices.
to attend meetings/conversations/etc., between entities to reit- erate information to the understanding of all parties involved. Training Training for individuals can be provided in the form of tech- nical training and cultural training. Transportation agencies offer technical training to employees and tribal members in order to help individuals develop a skill set for working on technical projects. Transportation agencies in partnership with tribes offer training on tribal culture and operations to their employees to develop tribal knowledge within the transporta- tion agency. 4.4.2 Coordination Practices Coordination is the second step in the ladder of collabora- tion. While communication focuses on the exchange of infor- mation, coordination adds the dynamic of interacting between organizations, can facilitate the formation of networks, and achieves effective common results. These interactions can lead to altering activities for mutual benefit of the stakeholders involved. Coordination efforts must recognize the need for cultural competency in communication and must protect and preserve tribal resources and land ownership while maintain- ing confidentiality. Sovereignty governs the nature of the inter- actions and the actions that can be taken. Meetings/Summits/Workshops Meetings between local, state, federal, and tribal entities are used to coordinate activities when working on a project of concern to tribal communities. Summits and workshops allow for tribal, local, state and federal agencies to join together to discuss issues in transpor- tation and steps to be taken to improve operations on trans- portation projects of concern to tribal communities. Areas of improvement are identified for future work and collabora- tion between transportation agencies and tribal communities. Summits and workshops also present an opportunity for agen- cies and tribes to share guidance for current practices learned in day-to-day operations. Public/Tribal Involvement Public involvement activities are used to solicit input from affected parties through presentations, charrettes, public hear- ings, and/or other coordinated activities with tribal commu- nities. Public involvement activities allow entities, like tribal communities, to participate in project planning and provide input on proposed and current projects. Tribal Consortiums A tribal consortium representing tribes from a specific region advances coordination between DOTs and tribes as coordination occurs between the consortium and other enti- ties to address global concerns and needs of the tribes. Loans and/or Grants for Funding In the case that a transportation project of concern to tribal governments lacks sufficient funding, the party in need of fund- ing, whether tribal or state, can obtain a loan from another party for project completion, or the party in need can obtain a grant from another party or agency. Tribal Liaisons and Coordinators Tribal liaisons and coordinators serve as experts on trans- portation projects of concern to tribal communities and assist in the coordination of activities between transportation agen- cies and tribal communities. Formal Agreements Formal agreements are implemented at both the program and project level between transportation agencies and tribal communities to define responsibilities of each entity when working on a transportation project. Regional or State Level Conferences Regional and state level conferences provide a forum for the exchange of views, presentations regarding issues of common concern, and networking thereby serving as an opportunity for increased coordination between tribes and transportation agencies. 4.4.3 Cooperation Practices The third step in the ladder is cooperation. With commu- nication and coordination practices in place, cooperation adds the dynamic of actually working together to achieve a common goal. In order to be able to work together, stake- holders must have cultural competency in their interac- tions and recognize the sovereignty in intergovernmental relations. Planning Organizations Planning organizations, including local, state, federal, and tribal governments result in improved visibility of tribal needs, 25
improved regional coordination of projects, more complete data and an awareness of common transportation needs. Regional Transit Districts and Coalitions An established Regional Transit District or Coalition that includes membership of local and tribal governments can seek alternatives to choose the best solution to a transportation issue which has the least impact on tribal communities. Resource Sharing The pooling of funds and sharing of available resources for a transportation project between tribes, local, state, and fed- eral governments benefits all parties involved and resolves the issue of funding deficiency. Investigation of Alternatives In the case that a transportation project adversely affects a tribe, an investigation of alternatives of least impact on tribal communities is researched by tribal, local, state, and federal governments, with the alternative of least impact being chosen for the project. The investigation of alternatives can also be applied in identifying funding for a project. Planning for Disaster Preparedness and Concurrent Response to Disasters Tribes, DOTs, and local agencies (police, etc.) develop a plan to follow in the event of a disaster, and implement those plans in concurrent response when disaster strikes on tribal or adja- cent lands. 26
