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

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NCHRP Web-Only Document 281: Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources Hope E. Luhman WSP USA Inc. Kansas City, MO Terry Klein SRI Foundation Rio Rancho, NM Final Report for NCHRP Project 25-25, Task 114 Submitted March 2020 NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM Systematic, well-designed, and implementable research is the most effective way to solve many problems facing state departments of transportation (DOTs) administrators and engineers. Often, highway problems are of local or regional interest and can best be studied by state DOTs individually or in cooperation with their state universities and others. However, the accelerating growth of highway transportation results in increasingly complex problems of wide interest to highway authorities. These problems are best studied through a coordinated program of cooperative research. Recognizing this need, the leadership of the American Association of State Highway and Transportation Officials (AASHTO) in 1962 initiated an objective national highway research program using modern scientific techniques—the National Cooperative Highway Research Program (NCHRP). NCHRP is supported on a continuing basis by funds from participating member states of AASHTO and receives the full cooperation and support of the Federal Highway Administration (FHWA), United States Department of Transportation, under Agreement No. 693JJ31950003. COPYRIGHT INFORMATION Authors herein are responsible for the authenticity of their materials and for obtaining written permissions from publishers or persons who own the copyright to any previously published or copyrighted material used herein. Cooperative Research Programs (CRP) grants permission to reproduce material in this 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, FTA, GHSA, NHTSA, or TDC endorsement of a particular product, method, or practice. It is expected that those reproducing the material in this document for 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 from CRP. DISCLAIMER The opinions and conclusions expressed or implied in this report are those of the researchers who performed the research. They are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; the FHWA; or the program sponsors. The information contained in this document was taken directly from the submission of the author(s). This material has not been edited by TRB.

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C O O P E R A T I V E R E S E A R C H P R O G R A M S CRP STAFF FOR NCHRP Web-Only Document 281 Christoper J. Hedges, Director, Cooperative Research Programs Lori L. Sundstrom, Deputy Director, Cooperative Research Programs Ann M. Hartell, Senior Program Officer Jarrel McAfee, Senior Program Assistant Eileen P. Delaney, Director of Publications Natalie Barnes, Associate Director of Publications Jennifer Correro, Assistant Editor NCHRP PROJECT 25-25/Task 114 PANEL AREA OF TRANSPORTATION PLANNING—HUMAN AND NATURAL ENVIRONMENT Jody L. Brown, California DOT, Sacramento, CA (Chair) Jeani L. Borchert, North Dakota DOT, Bismarck, ND Rhonda Fair, Director - Tribal Coordination, Oklahoma City, OK Heather Mustonen, Georgia DOT, Atlanta, GA Benjamin Rhodd, Rosebud Sioux Tribe, Rosebud, SD Haley Rush, Cox/McLain Environmental Consulting, Inc, Tulsa, OK Jason A. Watkins, Ohio DOT, Columbus, OH Stephanie Stoermer, FHWA Liaison Melissa A. Savage, AASHTO Liaison ACKNOWLEDGMENTS This study was conducted for the AASHTO Committee on Environment and Sustainability, with funding provided through the National Cooperative Highway Research Program (NCHRP) Project 25-25, Task 114, “Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources.” The NCHRP is supported by annual voluntary contributions from the state Departments of Transportation (DOTs). Project 25-25 is intended to fund quick response studies on behalf of the Committee on Environment and Sustainability. The report was prepared by Hope E. Luhman, PhD, RPA, WSP USA Inc., and Terry Klein, SRI Foundation.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources i SUMMARY The research objective of NCHRP Project 25-25, Task 114 was to understand and detail how tribal perspectives and expertise could inform the requirements and intent of the Section 106 process of the National Historic Preservation Act (NHPA) for surface transportation projects, which includes recognizing federal agency government-to-government consultation responsibilities and addressing issues associated with confidentiality. Previous research conducted by NCHRP and other organizations and agencies has articulated several roadblocks to facilitating the integration of tribal expertise into the Section 106 process (and early planning). These roadblocks include the following. • Tribal responsiveness because of capacity issues and limited financial and personnel resources. • Lack of trust between tribes and agencies. • Resolving conflicting perspectives on data and information acquisition, cultural sensitivity, cultural perspectives, and confidentiality issues. Possible solutions resulting from this research study include the following. • Enhance the capacity of tribes to contribute their expertise to project development by compensating tribes for their participation in the same way an agency would pay a consultant. Potential financially compensated activities might include inventory/survey (including consultation with elders and other experts), evaluations of identified places of religious and cultural significance, and development and implementation of measures to resolve adverse effects. This would not involve compensation for participation as a Section 106 consulting party in the Section 106 process (i.e., consulting party consultation as stipulated in 36 CFR 800.3 to 800.6). • Dedicated agency staff, such as tribal liaisons, who are involved in different phases of the entire project delivery process (not just the Section 106 process), from early transportation planning (long-range planning, corridor planning, 10-year plans, and project programming) to project completion. • Collaborative development of memoranda of understanding or protocols detailing the use of tribal expertise in both early planning and project development. When appropriate and agreed upon, these protocols can also be codified in formal Section 106 agreement documents as part of Section 106 reviews. • Protocols can also be used in laying out process for communication between tribes and agencies, addressing information and data acquisition, cultural sensitivity, cultural perspective, and confidentiality issues. • Opportunities for face-to-face interactions and discussions during all aspects of project delivery, from early planning to resolution of adverse effects. • Providing continuous feedback to tribes on how their expertise is used in early planning and project development decision-making.