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NATIONAL NCHRP REPORT 690 COOPERATIVE HIGHWAY RESEARCH PROGRAM A Guidebook for Successful Communication, Cooperation, and Coordination Strategies Between Transportation Agencies and Tribal Communities

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TRANSPORTATION RESEARCH BOARD 2011 EXECUTIVE COMMITTEE* OFFICERS CHAIR: Neil J. Pedersen, Administrator, Maryland State Highway Administration, Baltimore VICE CHAIR: Sandra Rosenbloom, Professor of Planning, University of Arizona, Tucson EXECUTIVE DIRECTOR: Robert E. Skinner, Jr., Transportation Research Board MEMBERS J. Barry Barker, Executive Director, Transit Authority of River City, Louisville, KY Deborah H. Butler, Executive Vice President, Planning, and CIO, Norfolk Southern Corporation, Norfolk, VA William A.V. Clark, Professor, Department of Geography, University of California, Los Angeles Eugene A. Conti, Jr., Secretary of Transportation, North Carolina DOT, Raleigh James M. Crites, Executive Vice President of Operations, Dallas-Fort Worth International Airport, TX Paula J. Hammond, Secretary, Washington State DOT, Olympia Adib K. Kanafani, Cahill Professor of Civil Engineering, University of California, Berkeley Susan Martinovich, Director, Nevada DOT, Carson City Michael R. Morris, Director of Transportation, North Central Texas Council of Governments, Arlington Tracy L. Rosser, Vice President, Regional General Manager, Wal-Mart Stores, Inc., Mandeville, LA Steven T. Scalzo, Chief Operating Officer, Marine Resources Group, Seattle, WA Henry G. (Gerry) Schwartz, Jr., Chairman (retired), Jacobs/Sverdrup Civil, Inc., St. Louis, MO Beverly A. Scott, General Manager and CEO, Metropolitan Atlanta Rapid Transit Authority, Atlanta, GA David Seltzer, Principal, Mercator Advisors LLC, Philadelphia, PA Lawrence A. Selzer, President and CEO, The Conservation Fund, Arlington, VA Kumares C. Sinha, Olson Distinguished Professor of Civil Engineering, Purdue University, West Lafayette, IN Daniel Sperling, Professor of Civil Engineering and Environmental Science and Policy; Director, Institute of Transportation Studies; and Interim Director, Energy Efficiency Center, University of California, Davis Kirk T. Steudle, Director, Michigan DOT, Lansing Douglas W. Stotlar, President and CEO, Con-Way, Inc., Ann Arbor, MI C. Michael Walton, Ernest H. Cockrell Centennial Chair in Engineering, University of Texas, Austin EX OFFICIO MEMBERS Peter H. Appel, Administrator, Research and Innovative Technology Administration, U.S.DOT J. Randolph Babbitt, Administrator, Federal Aviation Administration, U.S.DOT Rebecca M. Brewster, President and COO, American Transportation Research Institute, Smyrna, GA Anne S. Ferro, Administrator, Federal Motor Carrier Safety Administration, U.S.DOT John T. Gray, Senior Vice President, Policy and Economics, Association of American Railroads, Washington, DC John C. Horsley, Executive Director, American Association of State Highway and Transportation Officials, Washington, DC David T. Matsuda, Deputy Administrator, Maritime Administration, U.S.DOT Victor M. Mendez, Administrator, Federal Highway Administration, U.S.DOT William W. Millar, President, American Public Transportation Association, Washington, DC Tara O'Toole, Under Secretary for Science and Technology, U.S. Department of Homeland Security, Washington, DC Robert J. Papp (Adm., U.S. Coast Guard), Commandant, U.S. Coast Guard, U.S. Department of Homeland Security, Washington, DC Cynthia L. Quarterman, Administrator, Pipeline and Hazardous Materials Safety Administration, U.S.DOT Peter M. Rogoff, Administrator, Federal Transit Administration, U.S.DOT David L. Strickland, Administrator, National Highway Traffic Safety Administration, U.S.DOT Joseph C. Szabo, Administrator, Federal Railroad Administration, U.S.DOT Polly Trottenberg, Assistant Secretary for Transportation Policy, U.S.DOT Robert L. Van Antwerp (Lt. Gen., U.S. Army), Chief of Engineers and Commanding General, U.S. Army Corps of Engineers, Washington, DC Barry R. Wallerstein, Executive Officer, South Coast Air Quality Management District, Diamond Bar, CA *Membership as of March 2011.

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NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM NCHRP REPORT 690 A Guidebook for Successful Communication, Cooperation, and Coordination Strategies Between Transportation Agencies and Tribal Communities ATR Institute THE UNIVERSITY OF NEW MEXICO Albuquerque, NM Giovanni C. Migliaccio UNIVERSITY OF WASHINGTON Seattle, WA Geri Knoebel Rebecca Martinez THE UNIVERSITY OF NEW MEXICO Albuquerque, NM Dexter Albert Jason Hurd INTRINSIC CONSULTING LLC Flagstaff, AZ Subscriber Categories Administration and Management Society Research sponsored by the American Association of State Highway and Transportation Officials in cooperation with the Federal Highway Administration TRANSPORTATION RESEARCH BOARD WASHINGTON, D.C. 2011 www.TRB.org

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NATIONAL COOPERATIVE HIGHWAY NCHRP REPORT 690 RESEARCH PROGRAM Systematic, well-designed research provides the most effective Project 08-65 approach to the solution of many problems facing highway ISSN 0077-5614 administrators and engineers. Often, highway problems are of local ISBN 978-0-309-15563-2 interest and can best be studied by highway departments individually Library of Congress Control Number 2011927762 or in cooperation with their state universities and others. However, the 2011 National Academy of Sciences. All rights reserved. accelerating growth of highway transportation develops increasingly complex problems of wide interest to highway authorities. These problems are best studied through a coordinated program of COPYRIGHT INFORMATION cooperative research. Authors herein are responsible for the authenticity of their materials and for obtaining In recognition of these needs, the highway administrators of the written permissions from publishers or persons who own the copyright to any previously American Association of State Highway and Transportation Officials published or copyrighted material used herein. initiated in 1962 an objective national highway research program Cooperative Research Programs (CRP) grants permission to reproduce material in this employing modern scientific techniques. This program is supported on publication for classroom and not-for-profit purposes. Permission is given with the understanding that none of the material will be used to imply TRB, AASHTO, FAA, FHWA, a continuing basis by funds from participating member states of the FMCSA, FTA, or Transit Development Corporation endorsement of a particular product, Association and it receives the full cooperation and support of the method, or practice. It is expected that those reproducing the material in this document for Federal Highway Administration, United States Department of educational and not-for-profit uses will give appropriate acknowledgment of the source of any reprinted or reproduced material. For other uses of the material, request permission Transportation. from CRP. The Transportation Research Board of the National Academies was requested by the Association to administer the research program because of the Board's recognized objectivity and understanding of NOTICE modern research practices. The Board is uniquely suited for this purpose as it maintains an extensive committee structure from which The project that is the subject of this report was a part of the National Cooperative Highway Research Program, conducted by the Transportation Research Board with the approval of authorities on any highway transportation subject may be drawn; it the Governing Board of the National Research Council. possesses avenues of communications and cooperation with federal, The members of the technical panel selected to monitor this project and to review this state and local governmental agencies, universities, and industry; its report were chosen for their special competencies and with regard for appropriate balance. relationship to the National Research Council is an insurance of The report was reviewed by the technical panel and accepted for publication according to procedures established and overseen by the Transportation Research Board and approved objectivity; it maintains a full-time research correlation staff of by the Governing Board of the National Research Council. specialists in highway transportation matters to bring the findings of The opinions and conclusions expressed or implied in this report are those of the research directly to those who are in a position to use them. researchers who performed the research and are not necessarily those of the Transportation The program is developed on the basis of research needs identified Research Board, the National Research Council, or the program sponsors. by chief administrators of the highway and transportation departments The Transportation Research Board of the National Academies, the National Research and by committees of AASHTO. Each year, specific areas of research Council, and the sponsors of the National Cooperative Highway Research Program do not needs to be included in the program are proposed to the National endorse products or manufacturers. Trade or manufacturers' names appear herein solely because they are considered essential to the object of the report. Research Council and the Board by the American Association of State Highway and Transportation Officials. Research projects to fulfill these needs are defined by the Board, and qualified research agencies are selected from those that have submitted proposals. Administration and surveillance of research contracts are the responsibilities of the National Research Council and the Transportation Research Board. The needs for highway research are many, and the National Cooperative Highway Research Program can make significant contributions to the solution of highway transportation problems of mutual concern to many responsible groups. The program, however, is intended to complement rather than to substitute for or duplicate other highway research programs. Published reports of the NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM are available from: Transportation Research Board Business Office 500 Fifth Street, NW Washington, DC 20001 and can be ordered through the Internet at: http://www.national-academies.org/trb/bookstore Printed in the United States of America

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The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. On the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Ralph J. Cicerone is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Charles M. Vest is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, on its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy's purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Ralph J. Cicerone and Dr. Charles M. Vest are chair and vice chair, respectively, of the National Research Council. The Transportation Research Board is one of six major divisions of the National Research Council. The mission of the Transporta- tion Research Board is to provide leadership in transportation innovation and progress through research and information exchange, conducted within a setting that is objective, interdisciplinary, and multimodal. The Board's varied activities annually engage about 7,000 engineers, scientists, and other transportation researchers and practitioners from the public and private sectors and academia, all of whom contribute their expertise in the public interest. The program is supported by state transportation departments, federal agencies including the component administrations of the U.S. Department of Transportation, and other organizations and individu- als interested in the development of transportation. www.TRB.org www.national-academies.org

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COOPERATIVE RESEARCH PROGRAMS CRP STAFF FOR NCHRP REPORT 690 Christopher W. Jenks, Director, Cooperative Research Programs Crawford F. Jencks, Deputy Director, Cooperative Research Programs Christopher Hedges, Senior Program Officer Danna Powell, Senior Program Assistant Eileen P. Delaney, Director of Publications Margaret B. Hagood, Editor NCHRP PROJECT 08-65 PANEL Field of Transportation Planning--Area of Forecasting Ronald Hall, Colorado State University, Fort Collins, CO (Chair) Dianne Kresich, Arizona DOT, Phoenix, AZ Megan "Beeby" Cotton, Washington State DOT, Olympia, WA Jo Anne DiStefano, New York State DOT, Albany, NY LeRoy Gishi, Bureau of Indian Affairs, Germantown, MD Jacque Hostler, Trinidad Rancheria, Trinidad, CA Chris W. Huffman, Kansas and Missouri Certified General Property Appraiser, Lawrence, KS Sherry E. Munford, Virginia DOT, Richmond, VA Robert L. Reeder, Missouri DOT, Jefferson City, MO Gary Stevig, Nay'dini'aa Na'Traditional Village, Sutton, AK Kenneth Petty, FHWA Liaison Martine A. Micozzi, TRB Liaison AUTHOR ACKNOWLEDGMENTS The research project reported herein was performed under NCHRP Project 08-65 by the University of New Mexico in association with Intrinsic Consulting LLC. During the initial project phases, PAIKI was also involved in the project activities. The University of New Mexico served as prime contractor. Giovanni C. Migliaccio, Ph.D., of the Department of Construction Management at the University of Washington served as project director and principal investigator (Note: Dr. Migliaccio was affiliated with the Department of Civil Engineering at the University of New Mexico throughout most of this project, but he completed the final reports while at the University of Washington). Dexter Albert and Jason Hurd of Intrinsic Consulting LLC, Geri Knoebel of the ATR Institute at UNM, and Rebecca Martinez, a graduate research assistant with the UNM Department of Civil Engineering also performed major roles in this proj- ect. Terry Holley and Michael Quintana with PAIKI were also involved with early research activities. Ms. Knoebel has to be credited for the extensive review of legislation and policy initiatives that is included in Chapter 2 and for reviewing content of the final reports. Ms. Martinez has to be credited for her work on the effect of intergovernmental networks that is included in Chapter 3. Similarly, Mrs. Albert and Hurd have to be credited for developing several of the case studies included in Appendix C and for reviewing the final reports. The research team wishes to thank the participants to this study. While their contribution was precious for identifying best practices for collaboration, their participation to the study has to stay anonymous for compliance to the research protocols. The researchers also thank staff at the seven Tribal Technical Assis- tance Program (TTAP) centers and the research panel for assisting with the data collection.

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FOREWORD By Christopher Hedges Staff Officer Transportation Research Board This report provides guidelines to help departments of transportation and tribal commu- nities work together to achieve successful transportation projects on tribal lands. It addresses a wide range of issues and topics that must be considered and presents a flexible approach that can be adapted to most situations. After conducting extensive interviews, workshops, and a Delphi survey, the research team identified successful practices and devel- oped structured case studies to illustrate the most successful practices. This Guidebook will provide considerable value to all agency staff and tribal communities involved in the plan- ning, design, construction, and maintenance of transportation projects on tribal lands. Throughout the United States, thousands of miles of roads operated by transportation agencies traverse lands of interest to or under the jurisdiction of Native American tribes. As the need arises for transportation improvements, so does the need to conduct extensive and meaningful outreach to the members and governing bodies of these tribes. Historically, the relationship between government agencies and tribes has often been complex. Despite wide- spread agreement by parties on all sides that coordination on transportation projects has not always achieved mutually beneficial results, research that identifies the underlying causes and develops practical solutions for achieving such results is scarce. Transportation projects increasingly impact--and are impacted by--tribes. With 562 federally recognized tribes as well as many state-recognized and non-recognized tribes located in all regions across the country, there is a significant need for results-oriented strategies for public involvement and for consultation between government agencies and tribes. Under NCHRP Project 08-65, a research team led by the University of New Mexico used workshops and interviews to identify successful practices for collaboration between trans- portation agencies and tribal communities when dealing with projects on tribal lands. A Delphi analysis was used to build consensus on the most effective practices that yielded pos- itive results and have potential for wide application. The results were used to develop step- by-step guidelines to analyze a proposed transportation project, identify particular issues or concerns, and select and implement strategies and practices that are best-suited for the par- ticular situation. The practices are illustrated using 46 structured case studies. The Guide- book includes a methodology to implement the recommended practices to achieve the best possible outcomes. The Guidelines are supplemented by a final research report, which is available as NCHRP Web-Only Document 171 on the TRB website at http://www.trb.org/Publications/Pubs NCHRPWebOnlyDocuments.aspx

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CONTENTS 1 Chapter 1 Introduction 1 1.1 Background 1 1.2 Research Objectives 1 1.3 Research Approach 2 1.4 Guidebook Limitations 2 1.5 Overview of Guidebook Content 3 Chapter 2 Assessment of Legal and Policy Requirements 3 2.1 Overview 4 2.2 U.S. Policies Affecting Native American Tribes 4 2.2.1 Agreements Between Equals (17871828) 4 2.2.2 Relocation of Native Americans (18281887) 5 2.2.3 Allotment and Assimilation (18871934) 5 2.2.4 Reorganization Period (19341945) 5 2.2.5 Termination Period (19451968) 6 2.2.6 Self-Determination Era (1968 to present) 8 2.2.7 Summary 8 2.3 Transportation-Specific Policies Impacting Native American Tribes 8 2.3.1 Federal Level 11 2.3.2 State Level Initiatives 13 2.3.3 Summary 14 Chapter 3 Networks as the Foundation for Collaboration 14 3.1 Overview 14 3.2 Collaboration for Effective Consultation 14 3.3 Establishing Collaboration Through Networks 15 3.4 Network Initiatives by State 15 3.4.1 Minnesota 16 3.4.2 North Dakota 16 3.4.3 Washington 16 3.4.4 Arizona 17 3.5 Summary 18 Chapter 4 Issues and Communication, Coordination, and Cooperation Practices 18 4.1 Overview 18 4.2 A Ladder to Collaboration: Identification of Issues and 3Cs Practices 20 4.3 Issues Impacting Tribal Transportation Initiatives 20 4.3.1 Major Issue No.1: Cultural Competency 21 4.3.2 Major Issue No.2: Protection and Preservation of Tribal-Sensitive Resources 22 4.3.3 Major Issue No.3: Confidentiality of Tribal-Sensitive Matters 22 4.3.4 Major Issue No.4: Sovereignty

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23 4.3.5 Major Issue No.5: Land Ownership 23 4.3.6 Major Issue No.6: Monetary Matters 23 4.4 Communication, Coordination, and Cooperation Practices 24 4.4.1 Communication Practices 25 4.4.2 Coordination Practices 25 4.4.3 Cooperation Practices 27 Chapter 5 Tribe/Agency Collaboration Toolbox (TACT) 27 5.1 Overview of Toolbox 27 5.2 Step 1: Identification of Transportation Initiative 27 5.3 Step 2: Identification of Underlying Issues 28 5.4 Step 3: Selection of Desired Level of Collaboration 29 5.5 Step 4: Selection of 3C Practices 29 5.6 Step 5: Identification and Review of Case Studies 31 5.7 Step 6: Review of Implementation Plan, Lessons Learned and Recommendations 31 5.8 Using TACT: An Example 31 5.8.1 Step 1: Identification of Transportation Initiative 31 5.8.2 Step 2: Identification of Underlying Issues 32 5.8.3 Step 3: Selection of Desired Level of Collaboration 32 5.8.4 Step 4: Selection of 3C Practices 32 5.8.5 Step 5: Identification and Review of Related Case Studies 32 5.8.6 Step 6: Review of Implementation Plan, Lessons Learned, and Recommendations 33 Bibliography 35 Appendix A Policy Resources 49 Appendix B Issue Self-AssessMent Checklists 54 Appendix C Case Studies 100 Appendix D Guidebook Implementation Process (GIP) 103 Appendix E Strategy-Specific Implementation Plans Note: Many of the photographs, figures, and tables in this report have been converted from color to grayscale for printing. The electronic version of the report (posted on the Web at www.trb.org) retains the color versions.