Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources (2020)

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Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-1 APPENDIX B: INTERVIEW RESPONSE DATA All responses lightly edited for clarity and anonymity. STATE DOTS 1. In your experience what have been the most effective approaches for incorporating traditional tribal expertise into the Section 106 process? Response 1 • In our state, we meet twice a year with 16 regional tribes. We discuss approaches and perspectives as a group (TCC) and come up with approaches approved by the group. We also include TCS in the field with our archaeologists. We have taken the TCC to sites to provide insight into use. We do the best we can to incorporate their perspectives and knowledge into our projects. Response 2 • Our more successful examples of incorporating traditional tribal knowledge and/or expertise into the Section 106 process are those in which tribes have the capacity to engage meaningfully with our Department about cultural resources concerns in the context of transportation project development. Given that scientific data and technical reporting are not necessarily meaningful to tribal stakeholders, our department’s mitigation efforts seek to ensure that the scientific data obtained from an archaeological investigation can be sufficiently translated or made available in a manner that is beneficial to all stakeholders, including tribes and the public. We try to promote the concept that traditional tribal knowledge and archaeological knowledge are not mutually exclusive and, in fact, can be complimentary. We encourage our tribal partners to collaborate with us in Transportation Planning phases to address strategies for avoidance or preservation of resources through early planning, as well as during Project Delivery phases to identify strategies for integrated treatment and mitigation when avoidance of resources is not feasible. When tribes are able to engage in the resolution of adverse effects for archaeological sites eligible under Criterion D, mitigation efforts tend to involve outcomes that have more meaning and are beneficial to the tribes, beyond archaeological data recovery and curation. Such outcomes also tend to be more beneficial from a public education standpoint, as well. For example, in addition to data recovery and curation to resolve adverse effects to an archaeological site for one of our projects, a series of interpretive panels was created and installed along hiking trails, in connection with one of our roadside rest areas located along a scenic river. The content of the interpretive panels was developed in cooperation with a local tribal elder who contributed traditional knowledge to the content of the panels, as well original illustrations/drawings that were also included on the interpretive panels. The panels included topics on local tribal culture, native plants and animals, and archaeology. This approach was considered

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-2 successful in addressing scientific archaeological values (data recovery/curation), traditional tribal values (tribal elder input and participation), and public education values (informative display panels along public trails, based on the project’s biological and cultural resources technical investigations). In another example, for a large linear project with multiple archaeological sites requiring testing, the consulting tribal representatives were provided technical training in archaeological field methods and techniques, so they could actively participate in archaeological testing/evaluation efforts as archaeological technicians. Correspondingly, as part of the same training effort, a tribal elder, in turn, provided training to the archaeologists on traditional tribal knowledge and culture, so that both parties received knowledge about one another’s perspectives, as part of a collaborative approach to site testing and evaluation, which will be documented as part of the cultural resources investigation. This effort is ongoing as the District continues consultation with the tribes on the site evaluation work. Other examples of mitigation outcomes involving the incorporation of tribal knowledge have included the preparation of an English-Tribal language translation dictionary, video recording of tribal elder reading in tribal language, creation of school curricula pertaining to state prehistory, creation of a children’s book of traditional tribal stories, creation of video documentaries that capture traditional knowledge/perspectives of local tribal people, and/or the development of websites or mobile apps with relevant tribal history/prehistory that offer educational content for tribes and the public. In other efforts to include traditional knowledge in the 106 process, our Department has invited consulting tribes to contribute their own ethno history chapter in the cultural resource technical reports (unedited by the Department, with full authorship credit to the tribe). The intent of such a chapter is to provide space for tribes to present their own ethno history/traditional perspective in their own words (as opposed to relying solely on the existing ethnographic literature) to be captured in the cultural resources technical reporting. The outcomes of this have been mixed and are dependent on a number of factors, including the tribe’s capacity, ability, and willingness. One of our Districts has been documenting the oral history information provided by a tribal stakeholder, with whom they work regularly, as a part of their regular project consultation meetings. The district then augments the oral history input with archival research and documents it in the technical reports. The tribe has expressed gratitude for this, as none of their knowledge has been previously written down. The tribe has then used such documentation for consultation with other agencies. The benefit of this approach is that it removes the burden on the tribes to produce a written product themselves.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-3 Response 3 • The DOT has been setting up a number of work agreements with tribes — for contractual services provided. For ethnographic research, Phase I and Phase II testing, and monitoring. Also includes evaluation of significance of properties. Set up with intergovernmental agreements. In absence of having agreements with a tribe, their university contractors bring on tribes on projects. Elders can also come out to the site — not paid — during archaeological work. Some tribes like this approach. Response 4 • For the tribes, what is most effective is having face-to-face discussions, and information sharing. Or in a formal meeting or less formal, or during a field review or partner survey (where a tribe is working alongside the archaeologists). During these discussions, the DOT gets information on how to or not how to share tribal information with others. The DOT funds tribal travel if tribes ask for assistance. Response 5 • Have standard process for consultation which tribes are comfortable with. This provides a base line, and then can work in more detail with tribes on issues where there are known TCPs and other tribal issues. The DOT does additional outreach with tribes on projects with these issues. Flag projects for their attention. Also, have inter-tribal meetings on programmatic concerns that can then be applied to all their projects. Increase use of technology — webinars. For initial project webinars, provide overview of project in webinar, proposed survey methods, and ask for questions and concerns based on information provided in webinar. May have follow-up webinars if having effects on resources. These webinars have been effective — so say tribes who participate. Mixed bag on level of tribal participation. Helpful in dedicating DOT staff time so tribes can contribute to project — voicing their concerns. In addition, face-to-face meetings — bring multiple tribes together for discussions. DOT provides some travel assistance. Response 6 • Workshop followed by MOU.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-4 Response 7 • The DOT have found that when dealing with tribal issues (i.e., presence of TCPs), project delivery takes longer to accomplish. Therefore, starting early is critical when you need to bring in tribal expertise. Any time DOT identified that there may be TCP issues, they will use tribes as the experts. DOT has chosen to use an ethnographer acceptable to a tribe or a tribal ethnographer (and a contract is set up with tribe for the services of their ethnographer). However, DOT has found that ethnographers are not experts in Section 106 when it comes to National Register evaluations. DOT needs to tell the ethnographers that they have to make explicit eligibility findings, along with effects findings, in their reports. DOT has to educate these ethnographers about these aspects of Section 106 compliance. When it comes to avoidance or mitigation, the DOT has not been in a situation where they have had an adverse effect on a TCP. 2. In your experience what have been the least effective approaches for incorporating traditional tribal expertise into the Section 106 process? Response 1 • Sending letters is not an effective consultation approach. You need effective inclusion methods but your agency also has to be willing to address and respect tribal knowledge. I would also say that having State Historic Preservation Office respect for the tribal perspectives is extremely important to the results. Response 2 • In terms of resolving adverse effects to archaeological sites, we recognize that, while data recovery and curation may be suitable to address scientific archaeological values and preserve information about prehistory, this approach by itself does not necessarily address tribal cultural values or result in mitigation outcomes that are directly beneficial to the tribal community. In other words, we have found that the preparation of a scientific technical report and the curation of archaeological materials, alone, have not proven to be meaningful to tribal people (or to the public). Our least effective approaches are those in which tribal participation or input is limited. When tribal participation is limited, approaches to site treatment and mitigation tend to focus more on scientific archaeological goals (data recovery, analyses, and curation), but lack the inclusion or integration of traditional knowledge and expertise from tribes. While our cultural resources investigations seek to be thorough and include tribal ethno historic and ethnographic research as part of the investigations, the amount of direct input from local traditional tribal people can be difficult to obtain depending on the capacity and/or willingness of tribes to participate and share knowledge. In order to bolster the inclusion of traditional tribal knowledge, it may be appropriate for our agency

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-5 to further consider the Advisory Council on Historic Preservation’s Guidance on Assistance to Consulting Parties in the Section 106 Review Process (November 28, 2018). Response 3 • [No comments.] Response 4 • Formal paper sharing. Is less personal and less effective. Telephone discussions may work okay in some cases. Response 5 • Cannot assume if the DOT sends something, and hears nothing, that tribes have no concerns. Response 6 • Sending letters only. Response 7 • Difficulties arise when a project engineer or non-CRM DOT staff person tries to reach out to the tribes on project issues. Needs to be the CRM SME with tribal experience that engages tribes. 3. Has there been a project(s) that altered standard archaeological inventory and research methods to incorporate traditional tribal expertise and methods? What was done and why was the approach taken? Was the approach successful? Why or why not? Response 1 • The DOT includes TCSs in the field with archaeologists for all highway projects where field inventory efforts take place. Therefore, that is our normal operating approach. However, as an example of a modification of that approach I will talk about a Bypass project. Because of project delivery, needs and the known prevalence of stone feature sites in that part of the state, in consultation with our TCS partners, we modified our approach to: o Class III survey with TCS as usual. o Stone feature sites identified during Class III survey were fully recorded, including establishment of site boundaries, by a team of 15 tribal participants (although the formal site forms were produced by the archaeological firm in consultation with the tribal participants). o The tribal work was undertaken using a private business owned by a tribal member.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-6 o We involved FHWA FPO in the field to recognize the 4(f) related implications of the sites that were being identified/recorded. o At the request of one TCC member, we worked with a Medicine Man to visit the sites in person. o Because of the concern for unidentified burials the entire project was monitored by archaeologists and TCSs supplied by our tribal partners. o The approach was successful in identifying and recording over 8,000 features along 3 alternatives; 2 that were only identified as alternatives due to the results on the County/City preferred route. An avoidance route, modified to satisfy County needs, ultimately became the preferred and built alternative. Note that the 4(f) nature of some of the large stone feature sites was very useful in bringing disparate opinions into focus. o The difficulties encountered were monumental and some had long-term repercussions. o Because the stone features were identified by tribal members, not archaeologists (although the site was first located by archaeologists), SHPO was skeptical of the results. The TCC was told [that SHPO] staff would have to verify every feature before they could use the results to protect the massive site. o The monitoring effort was huge in scope and cost. The cost issues resulted in modification of verbal agreements with the TCC on reimbursements for construction monitoring. o With the monitoring there was identification of 3 stone feature sites not seen during the inventory. We easily avoided affecting 2 of the 3. By the time the third was identified a large structure was already in place. We had massive, difficult discussions on this point but were ultimately able to come to agreement to pad over the site, to the satisfaction of the TCC partners. Response 2 • Our standard archaeological inventory and research methods have been scaled back at times when tribes have expressed opposition to scientific archaeological analysis due to the tribe’s cultural beliefs. These instances are considered successful in the sense that we were able to work with the tribe(s) through consultation to achieve a balance between archaeological analyses/preservation of data and the cultural values of tribes whose resources are being affected by a project. That said, there is often tension around the consultation with and our efforts to find a suitable balance. Response 3 • The three above approaches have helped dealing with stacked rock features (which are TCPs). Had there been a tribal member on a survey crew on one past project, these features would have been identified as opposed to being missed by the archaeologists, resulting in a redo of the fieldwork. Tribal involvement has also resulted in identifying as cultural resources modified trees. Have been missed before on projects, so now more sensitive to these types of unique resources — natural features and as a landscape. Working with tribes, now looking at holistic pattern of a “site.”

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-7 Response 4 • The tribes they work with look to the archaeological investigations to base their input on. In some cases, tribes would ask for a landscape approach to bring in natural resources and landscape features, for placement and linkages to the archaeological sites and places of cultural significance. So, incorporate this landscape approach into archaeological evidence. This approach is increasing. Serves as a context for understanding the significance and value of sites and TCPs. Response 5 • They are just starting to get into this now — at identification phase. Have one actively in the works where tribes will participate in the Phase I survey — working now on how this will be done. They are getting more tribal requests for monitoring during identification. Response 6 • No. Response 7 • No. To expedite things, the DOT works with tribes on the ethnographic surveys and the results of this work are reported separately. This work is not combined with archaeological work. The DOT does continue to combine built environment and archaeology investigations into one study and report. In addition, it is clearly noted in the combined report that the findings are only for the built environment and archaeology, and that TCPs are handled separately in terms of findings — in a separate report. 4. Do you consider such an integrated or collaborative approach with tribes beneficial to the resolution of adverse effects? Why or why not? Response 1 • Tribal involvement is invaluable. Not only to resolution of adverse effects…, which in the example given above we did not have…but invaluable to identification of stone features not typically, identified by archaeologists. There is a good discussion of the tribal ability to recognize their sacred places in chapter one of Sebastian LeBeau’s dissertation, “Reconstructing Lakota Ritual in the Landscape: the Identification and Typing System for Traditional Cultural Property Sites.”3 Our collaboration with the Tribes has allowed us to avoid effect to the stone feature sites they value.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-8 Response 2 • Yes, effective and good faith collaboration between public agencies and tribal leaders/ representatives, whose heritage resources are being adversely affected by a public works project, is appropriate for many reasons, including meeting the spirit of the NHPA to preserve heritage for the benefit of future generations. An integrated, collaborative approach to the resolution of adverse effects is beneficial in that it offers a more holistic and inclusive consideration of tribal heritage resources affected by transportation projects and helps foster mitigation outcomes that more meaningfully address the values of all the stakeholders involved. Response 3 • Absolutely. Working with the tribes on the stacked rock features, once identified, were able to avoid these features. Response 4 • Yes! They subscribe to the idea that collaboration results in a more holistic way to address adverse effects — get a bigger understanding. In addition, resolution of adverse effects may extend beyond the site. Response 5 • Yes. Gets tribal buy-in early on project — all stages of consultation and project steps, so when come to resolution of adverse effects, the tribes feel they are part of the process all along. With this approach, they do not get any showstopper comments from tribes. Response 6 • Yes, collaborative approach is always best. Response 7 • N/A. 5. Has such an approach improved relationships and understanding between agencies and tribes? Response 1 • Our partnership with regional tribes on cultural resource issues has been tremendous. We have become family in many ways. We work together and we look forward to our meetings when we

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-9 get to visit. It has enhanced our mutual understanding of many sacred and valued resources and transportation project needs. Response 2 • We have found that collaborative approaches with tribes in the Section 106 process tend to stem more from already having a good pre-existing relationship with a tribe. Establishing a trust relationship with tribal partners and engaging in early coordination efforts with them separate and apart from the project delivery/Section 106 review process tends to help to foster better trust relationships with tribal partners, so that when we do find ourselves in circumstances in which we have to resolve adverse effects, it is easier to be more collaborative with our tribal partners in that context. That said, when we successfully collaborate with tribal partners during mitigation efforts, it does also contribute to a strengthening of those existing relationships. There are, however, situations where, in spite of good, successful collaborations, the department continues to struggle with maintaining good relationships with some tribal partners. Response 3 • Yes. Has helped understand what the DOT sees on the ground given collaborative work with tribes. They do quite a bit with the tribes in the field. Response 4 • Yes, has improved relationships. Their SHPO and the DOT are open to recording a landscape associated with tribes. They have done this in one case. Response 5 • Yes. As they build their consultation style and program, they have established trust with tribes. With history of working with tribes, when new person at a tribe, the new person can see history and helps build trust earlier with the new person. DOT reaches out to new person and shows them protocols with the previous person in their position. Introducing what has been established before and ask if anything needs to change with the new person. This does take some effort — not always easy given heavy workload among DOT staff. Response 6 • Yes, stemming from our original workshops and MOU/PNS. Response 7 • 100% with various tribes. 6. What have been the challenges to establishing such a collaborative approach?

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-10 Response 1 • It has taken many years of effort. In Their Own Light, A Case Study in Effective Tribal Consultation (U.S. DOT, FHWA, 2006),4 details some of that effort. We began with going out to each tribe at least monthly and getting to know people. We would bring information on some of our big projects. We then worked into a group programmatic approach after 6 years. As a group, it took us 2 years to write a PA creating the TCC. We have been operating under this agreement for 13 years. We have grown in size from FHWA, the DOT and 5 regional tribes to 16 regional tribes. When we first started having meetings, I could not get any[one] from the tribes to call me back and I was never sure who was coming to the meetings. We now Facebook Message, email, text and call each other frequently. Relationships do not develop overnight and it is relationships that you need to have effective collaborative approaches. Response 2 • In the context of the NHPA and the Section 106 review process, our Department, as a public agency, seeks to be inclusive of the views and values of all consulting parties, while also balancing regulatory obligations and the public need for a given transportation project. To achieve the intent of the NHPA in the context of transportation development and to ensure that the concerns/interests of all parties are properly considered, our Department seeks to conduct cultural resources investigations in a manner that addresses tribal cultural values, scientific archaeological values, and public education values. Some factors that hamper the inclusion of traditional tribal knowledge in the Section 106 review process include the following: o Incorporating traditional tribal expertise in the 106 process can only be effective and successful if tribes are able and willing to engage meaningfully with the Department. As tribes receive inquiries from multiple agencies regarding a variety of projects, many of them have limited capacity to fully engage in the process, which poses a challenge to the inclusion of tribal knowledge/expertise. o One challenge to establishing a collaborative approach includes an understandable reluctance on the part of some tribes and/or their elders to share traditional knowledge or information with government agencies. This is, in part, a trust issue directly tied to the establishment of good working relationships between agencies and tribes. Developing trust relationships takes time, and when staff or leadership changes occur on the part of the tribe or the agency, trust relationships often have to be reestablished, so the investments in trust relationships is always continuous and ongoing. A well-established trust relationship is a key factor in the successful inclusion of tribal knowledge in the 106 process. Developing non-binding Memoranda of Understanding or CPAs could be a helpful strategy in fostering and maintaining relationships with mutual understandings that have outcomes that are more predictable. These do, however, take time, and we have over 100 federally recognized tribes in our state. o Our agency has also experienced circumstances where traditional tribal values directly conflict with scientific archaeological inquiry. Some tribes are skeptical of archaeology and reject the

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-11 concept of collecting, analyzing, and/or curating archaeological materials. Some tribes have expressed preferences for all materials to reburied onsite or nearby with no analysis. This poses challenges in the context of the NHPA where the preservation of knowledge (data) runs contrary to tribal values/beliefs that archaeological remains should not be analyzed. We seek to find balance through consultation with the consulting tribes in these instances; such consultations tend to require a lot of time and can be contentious. o Another complication to the inclusion of traditional knowledge has occurred when non-tribal persons are hired by tribes to serve as their cultural resources representatives and/or assume Tribal Historic Preservation Office duties for the tribes. We have found, in such circumstances, the role of the tribal people becomes somewhat diminished. In some cases, the cultural staff retained by tribes act as barriers to the Department’s direct communication with more traditional tribal people and elders who may have traditional knowledge to share. Response 3 • Negotiating when it is appropriate to have monitors on site. Where do you draw the line when tribes request monitoring? Has been an issue. Response 4 • Timing is a tough one. Trust is a big one in terms of information sharing. Accountability on both sides. On the DOT’s side, being sure to pay tribes for their work — for timely payments. On the tribes’ side, providing a deliverable for their work. Response 5 • Time and amount of follow-up, especially with big projects with several properties of concern, and when multiple tribes are involved. Takes time to do all of these follow-ups. Hard to balance with project schedule. Response 6 • Face-to-face meetings are always best, and travel distance and lack of resources for such meetings is a problem. Response 7 • Timeliness in terms of getting survey results and ethnographic studies reports from the tribes. Tribes are busy with all sorts of other events and responsibilities, so the DOT needs to consider these timing issues during project scheduling.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-12 Costs. They are experiencing, on the average, higher costs if doing an ethnographic study as part of Section 106 compliance work. In addition, they do not know about these costs until they are a bit into developing the project. Therefore, this is an issue that needs to be understood by DOT staff and decision-makers. 7. In your experience what have been the most effective approaches for incorporating tribal expertise in early project planning, such as project programming (i.e., projects in the STIP)? Response 1 • We discuss the STIP at every meeting. I have detailed how to read it, which projects they may be most interested in, and the fact that they can notify me at any time about issues they anticipate coming down the pike. I have never had any participation on that level. Once I have maps and information on the type of project and even photos of an area, it becomes more real and we have been able to define interest and participation. What has been helpful though is project approaches with varied, malleable alternatives. We are also involving the THPOs in cultural resource report review (this is new so I am not sure how the response will be). We will also be sharing the site forms with the THPOs so that they can comment and assess the efficacy of their TCS involvement. Response 2 • Our department is currently working on ways to bring heritage preservation considerations into long and mid-range transportation planning processes; however, we are still working on how best to operationalize this. When speaking and working with tribes, we seek to emphasize avoidance of cultural resources through early coordination (prior to 106 review). We frequently advise tribes that transportation projects are largely a response to local and regional land use planning decisions and that getting involved with their local Metropolitan Planning Organizations (MPOs) and Regional Transportation Planning Agencies can give them a seat at the table and a voice in land use planning decisions that could ultimately affect tribal heritage sites. Our department has offered technical assistance to tribes who wish to develop Tribal Transportation Plans, the completion of which opens them up to funding opportunities and guarantees them a seat at the table with their local MPOs. Our department is also looking further into ways to work with tribes on Corridor studies to help identify sensitive areas, known resources, or “red flags” along a given corridor segment that should be addressed during the early corridor planning process. Having traditional tribal input during corridor planning could be very helpful, but we have not fully implemented this approach yet.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-13 As for mid-range planning, we have been able to consult with tribes about projects that are in the “Project Initiation phase” (projects that are roughly 3-5 years out and may or may not be funded/programmed). We are able to provide tribes with a list of such projects along with basic project location information (County, Route, and Post Mile), as well as a simple project description. This has allowed tribes to chime in well before the Section 106 review process to express concerns and/or identify areas of sensitivity that should be avoided; however, this approach has not necessarily resulted in the incorporation of traditional expertise, elicited traditional tribal expertise, so much as it has brought attention to known resources earlier. Response 3 • Note: They currently do not do this now. However, DOT in process of developing procedures for consulting with tribes during all aspects of planning, including for projects in STIP. Procedures will be completed by end of the year. Response 4 • Minimally do this. They would like to develop a planning tool with tribes. Their in-state tribe is involved in early planning for roads near their reservation. They are looking at Oregon DOT example — at all aspects of planning for tribes as a possible program they can duplicate in our state. Response 5 • This has not been done at the DOT. They are not in the Planning Office, which works independently from her office. Looking now at possible PEL approaches. Currently no tribal involvement in programming. Response 6 • P[roject] N[otification] S[ystem]. Response 7 • If the CRM staff knows about projects in planning that may potentially involve tribal issues, they reach out to tribes. And management and planners within the DOT understand and agree to this approach. 8. In your experience what have been the least effective approaches for incorporating tribal expertise in early project planning, such as project programming (i.e., projects in the STIP)?

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-14 Response 1 • While we have never sent letters as from the beginning we saw it as ineffective, I still believe from conversations with THPOs that getting a letter is meaningless in their world of inundation with letters. The things I have been talking about are really consultation methods and efficacy. What is critical for incorporation of tribal expertise that is learned through consultation is acceptance and implementation of approaches that respect that expertise. Agencies need to respect and accept it (I believe we have been successful because DOT management has been willing to listen respectfully to this input and allow for implementation and integration of tribal knowledge)…Federal Agencies, associated State Agencies — DOTs and SHPOs. Response 2 • As we have not fully fleshed out our approaches for incorporating tribal input into our early project planning and programming efforts, we do not necessarily have examples of ineffective approaches to provide. However, any approach for incorporating tribal expertise into early project planning processes can only be effective if the two parties are not able to engage meaningfully. Tribes have limited capacity to engage with agencies in the Section 106 review process, so adding additional demands on their time to meaningfully engage in early transportation planning processes can pose additional challenges. We have observed that, while some tribes have transportation planning departments and staff who work on planning processes, most tribes do not have this. Most tribal cultural resources departments are small with limited staff and the concept of early transportation planning is foreign to many who are otherwise used to working in the Section 106 review/project delivery phase. Finding key points of tribal engagement along the larger timeline of transportation planning is something our agency continues to work on in order to sufficiently bring more tribal expertise into the long-range planning processes. Response 3 • N/A. Response 4 • They do share the STIP with tribes, but this is a struggle since the times they have to work with tribes is at a premium, and this time may be better spent on actual projects. If they are going to engage tribes during planning, they need to have their planning discussions well thought out in order to have a fruitful discussion. This is all linked with the tribes’ limited availability given their consultation workload with all agencies. Response 5 • N/A.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-15 Response 6 • Just sending letters to tribes. Response 7 • Understanding effects to TCPs for these planned projects can be problematic. Even on a small project such as road stripping, tribal concerns about impacts may be heightened if a known TCP is near the project area. The DOT works with tribes so tribes have a better understanding of the nature of impacts and what can and cannot be done about a project still in early planning. 9. Based on the results of the recent General Accounting Office (GAO) report on tribal consultation, do you provide feedback to tribes on how the information/expertise they provided was used in the Section 106 process (and early project planning)? Response 1 • Yes. Response 2 • [No response provided.] Response 3 • They get feedback instantly since tribes are active participants in all phases of work. So give feedback to tribes and can discuss feedback with tribes. Will be holding a tribal summit next May, like done in Iowa. Summit will involve improving practices in collaboration with tribes. Response 4 • Yes. Has to be scaled — best on an individual project-by-project basis. Show on a regular basis on how their input is considered in the project process. This is done through their summits and when discussing and working on a specific project — bringing in what the DOT did on other projects like the one under consideration. Response 5 • On larger projects, would use webinars. Given all of the interaction with tribes on these projects, tribes are informed on how their input was used.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-16 But for all other projects, they do not explicitly respond to all tribal comments. Their new PA will have stipulation on how to provide feedback to tribes. Response 6 • No. Response 7 • If tribes are doing the work, under contract, the DOT evaluates the results as per the contractual agreement, so tribes get feedback that way. The DOT does provide feedback on the clarity of Section 106 findings in a report by a tribe but does not comment on or question the identification and evaluation of TCPs. 10. If you do, how is this feedback provided? Response 1 • At each meeting, I go thru the minutes in which I have highlighted what we have agreed to do or include as the tribes informed or requested and put what we did in italics. As far as what is shared in the field, at least basic recording is always done of all things identified by the tribes. This is reflected in the reports...although we had disagreement with SHPO about including Cultural Heritage Form information on maps and in reports but our TCC tribes want their TCPs recorded and reflected at least in the literature. Response 2 • [No response provided.] Response 3 • See Question 9 response. Response 4 • [See Question 9 response]. This happens on face-to-face discussions. Do in multiple communication avenues. One thing they do is to write a formal letter on how a solution was worked out with a tribe’s THPO and get the THPO’s okay on the letter, and then send letter to the tribal council to show the value of their THPO.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-17 Response 5 • See Question 9 response. Response 6 • [No response provided.] Response 7 • See Question 9 response. 11. Are tribes provided an opportunity to comment on this feedback information? Response 1 • We now provide site forms and draft reports to the tribes as we get them...using secure file transfer. We provide all final reports the same way — this is a new method. Tribes can comment on all our responses at TCC meetings and we adjust accordingly. Response 2 • [Incomplete response.] Response 3 • See Question 9 response. Response 4 • Yes. Especially when tailoring mitigation or preparing a MOA. Response 5 • Done through webinars and face-to-face meetings. Is done verbally through these venues. Also, do via email. Response 6 • [No response provided.] Response 7 • Yes. Again, the focus of any feedback is the clarity of formal Section 106 findings.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-18 12. How are disagreements that may arise during this feedback effort resolved? Response 1 • We discuss disagreements at TCC — there have been many over the years...between tribes and us...between various tribes. We work it out. When consultants disagree with TCSs in the field I have sent info to the TCS’s THPO or I have even gone in the field with their THPO to verify and ensure we are recording cultural resources appropriately. Response 2 • [No response provided.] Response 3 • Have not experienced this. Not an issue. Response 4 • They first need to be respectful of these disagreements. They do not have too many. DOTs need to show record of outreach and engagement as a way of showing done in a good faith effort. In addition, work to address disagreement — a design exception or other approach if possible. Response 5 • See Question 11 response. Response 6 • [No response provided.] Response 7 • The DOT has not had this happen. TRIBAL RESPONSES 1. Has your tribe participated in a project where standard archaeological and research methods were altered to incorporate tribal expertise and methods? What was done and why was the approach taken? Response 1

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-19 • Tribe consults in 10 different states. In certain states, there is consultation while in other states they are not consulted at all and there is no effort to see what the tribe is interested in. Typically, standard methods have not been altered. Have had the opportunity to be involved in projects where they were aware of the project and had been informed. Have had opportunities to monitor. Visits sites as needed. Do quality review and check certain projects as needed. Go back to sites to see if there was anything else to do. Response 2 • In our state, it is common for all Phase I/identification efforts to be reconnaissance level only. The tribe has been successful in getting people to do subsurface surveys — more archaeology not less conducted by non-tribal consultants with tribal monitoring as suggested by competence level of firm and nature of investigations. This work is literature and tribal expertise-driven and is designed to correct the inadequacies of the system — asking for level of investigation to address the lack of state standards/minimum levels of effort. This is viewed as the tribe bringing the work up to professional standards. They have dispensed with standards when it comes to curation. Need to take into consideration any cultural perspective that things should not be taken off the landscape. In addition, systemic issues have driven curation fees to $2500/box. Approach is to be thoughtful about leaving material in the ground, doing recordation in the field but also respecting those situations where some analyses may be needed to broaden understanding. Make sure to reach out to tribes to learn what their research questions/interest may be and bring that into the research design for a project — thoughtful, collaborative research. Need to address the issues of personalities. People need to be willing to work with tribes and have productive conversations — ability to switch easily between scientific jargon and standard language to build understanding, not science versus the tribe or science versus religion. Agencies need to be more creative in their approach. Tribal and agency staff need to have the professional background, be able to review the work plans and provide productive comments. Tribe needs to be involved at all levels. During fieldwork, the tribe works with the Cultural Resource Management firm throughout the entire process. If the tribe has concerns, there will be a tribal monitor (native typically with 8-15 years’ experience) placed in the field with the CRM firm to ensure the work is completed to the professional standards expected by the tribe.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-20 2. Was the approach successful? Why or why not? Response 1 • When consultation exists, always able to participate and feel that all concerns are being addressed. Response 2 • Yes. 3. Are you aware of other projects, perhaps involving a different tribe, where such an approach was undertaken? Are there any specifics on the approach that you could share? Response 1 • No. Has heard stories that South Dakota has an excellent consulting environment. Response 2 • See [Question 2] comments. 4. Do you consider such an integrated or collaborative approach between tribe(s) and agencies to be beneficial to the resolution of adverse effects? Why or why not? Response 1 • Yes. On certain projects might be beneficial. In areas where there is sensitivity, typically have monitoring but no review of report before completion. Sometimes they take issue with the historic context; tribal history — mostly pull history from old sources and use boilerplate. Response 2 • Yes. There is often collaboration with enlightened archaeologists. There have been missteps — great focus on PAs, which are often misused and thrust upon the tribes. The goal is to kick the can down the road and do 106. This puts us in a situation where we are doing salvage archaeology and shortchanges the opportunities to be clever, creative and discuss avoidance. PAs are being pushed out of DOT headquarters and the concern is that they are playing fast and loose when the desire should be to take care to be thoughtful. 5. Has such an approach improved relationships and understanding between agencies and tribes?

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-21 Response 1 • Yes, particularly on an individual basis with persons in the agencies and that makes consultation easier and more productive. Response 2 • Sometimes identification is the end of consultation — so once a resource is identified, that is it and a decision is made. The tribes need to be part of that conversation; SHPO does not ask if they have been consulted and does make calls without tribal input. There is an uneven process driven by personalities and a disconnect with the SHPO. This needs to be fixed. 6. From your perspective, what have been the challenges to establishing such a collaborative approach? Response 1 • Sometimes there are differences in perspective, and you need to get past that. Talk through any challenges — what if we do this or we do that? The more complex the project the more involved collaboration gets. Feedback — sometimes/sort of. Some states go through every step and there are opportunities for involvement at many points in the process. Other states somewhat less or none at all. Rarely is there any looping back on a project — tribe often does not know what the final decision is so there is a bit of a breakdown in the feedback loop. They would like to know on EVERY project what the final decision is — what is the conclusion? They take it on faith that the agency is considering their concerns. They receive hundreds of letters a month and so are selective about those they follow up on directly. Would like to know when a decision is made for records and for follow-up. Additional observations — some states have a tribal liaison and they are very good about following up and keeping watch. They facilitate the collaboration that enables the tribe to get the results — there is follow-up and follow-through. Tribe signed a MOU with a DOT. The process of writing it was beneficial to relationship building. Having such an agreement lets everyone know what they are doing and what to expect. Response 2 • Important that the totality of the cultural resource is captured — need to understand the landscape. If a tribal resource is identified, the tribe should have veto. “Archaeology and tribal worldview need not be diametrically opposed.” Suggested that Community-Based Participatory Research (CBPR) is a great guide to achieve good tribal consultation. You are not stewards of the past — archaeology

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-22 is a tool, not a philosophy. Do not need the push-pull — lots of faith in science and no need to attach western worldview. This is a conversation. FEDERAL AGENCY RESPONSE 1. In your experience what have been the most effective approaches for incorporating traditional tribal expertise into the Section 106 process? • Spending time in the field and working with Tribes on surveys has broadened our understanding of traditional tribal expertise. In doing so, we are beginning to learn to look at an area from not only the archaeological perspective but also attempting to look at an area in the way one of our tribal partners would look. We have started to see that in order to fully understand a significant resource that you must look at the landscape around it. The days of simply conducting single transect shovel tests while not taking into account the surrounding landscape are over. We are working to develop scopes of works and guidance for our contractors to ensure they are considering these new ways of thinking when conducting surveys for us. Having good relationships with Tribes is a huge part of incorporating traditional tribal expertise. By maintaining continuous communication through monthly phone calls and engaging with our Tribes through active NAGPRA, ARPA and other non-106 projects, we are able to learn so much about tribal expertise and apply what we learn in those venues to help us when working through a 106 project. Maintaining a good level of trust is also key, as some traditional knowledge/expertise may need to be held in confidence. 2. In your experience what have been the least effective approaches for incorporating traditional tribal expertise into the Section 106 process? • Only contacting Tribes via Section 106 consultation letters. 3. Has there been a project(s) that altered standard archaeological inventory and research methods to incorporate traditional tribal expertise and methods? What was done and why was the approach taken? Was the approach successful? Why or why not? • Yes, a proposed trail was requested on federal property in an area that had not been previously developed. During the initial phase I survey a number of cultural resources were identified that were of concern to Tribes. The survey area was expanded in order to gain a landscape level view as opposed to the earlier corridor survey that was conducted. In doing so, it was apparent that there were many additional resources in the area, including aboveground archaeological resources of a type that is not well documented or understood in the archaeological literature. Since this time, the project has been put on hold in order to allow more time to consult with the Tribes. We have met with Tribes face to face on a number of occasions to discuss this project and held conference calls to discuss and identify appropriate research methodologies. Native Americans conducted the following work: a Terrestrial LiDAR survey, cadaver dog survey, Native plant surveys, and multiple visits to the site. We are still in the midst of the working through this project so we do not

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-23 have an outcome yet. However, incorporating Tribal expertise has been essential to understanding these resources. 4. Do you consider such an integrated or collaborative approach with tribes beneficial to the resolution of adverse effects? Why or why not? • Yes, as in many cases that Tribal input is essential to having a better grasp on significance and effects. 5. Has such an approach improved relationships and understanding between agencies and tribes? • The more our agency has collaborated with Tribes the more we have learned the more trust we have gained and the more our relationships have grown. A personal working relationship is key to maintaining effective tribal partnerships. 6. What have been the challenges to establishing such a collaborative approach? • The geographic distance between our agency and the Tribes have in some cases caused issues as nothing can replace face-to-face interaction. We work to ensure constant communication and multiple opportunities to interact face to face, while also supplementing with monthly teleconferences. 7. In your experience what have been the most effective approaches for incorporating tribal expertise in early project planning, such as project programming (i.e., for DOTs, projects in the STIP)? • Early initiation of consultation and keeping Tribes apprised throughout all steps of the process. Especially for those more complex projects. We have instituted a monthly call with Tribes in order to keep open dialogue regarding all projects we have going on. This provides additional opportunity for comments and discussion aside from the traditional letter process. 8. In your experience what have been the least effective approaches for incorporating tribal expertise in early project planning, such as project programming (i.e., for DOTs, projects in the STIP)? • Only contacting Tribes via letter. 9. Do you provide feedback to tribes on how the information/expertise they provided was used in the Section 106 process (and early project planning)? • Yes, in some cases, we are able to avoid areas based on Tribal information and we inform them of such instances.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources B-24 10. If you do, how is this feedback provided? • Communication is handled via letters, emails, monthly conference calls and one on one phone calls. 11. Are tribes provided an opportunity to comment on this feedback information? • Yes, tribes are notified regarding their comments and how we addressed the comment to ensure there are no additional questions. 12. How are disagreements that may arise during this feedback effort resolved? • Disagreements or contentious issues are worked out in negotiation generally during a separate project-specific phone call(s).