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 1 1.0 INTRODUCTION Consultation is an essential element of historic preservation law compliance in the United States. For many involved in the consultation process, the goal of achieving effective and successful consultation continues to be a significant challenge. This is particularly true for federal agencies charged with the responsibility of consulting with federally recognized Indian tribes. In 1992, Congress amended the NHPA to give Indian tribes and Native Hawaiian organizations a significantly greater role in the historic preservation process. The changes to 36 CFR 800 (the implementing regulation for Section 106 of NHPA) after the 1992 amendments clarified federal agency responsibilities regarding tribal sovereignty and the government-to- government trust relationship that exists between the federal government and tribes. A path was also cleared for tribes to assume the functions of the State Historic Preservation Officer (SHPO) for matters affecting tribal lands, including establishment of a Tribal Historic Preservation Officer (THPO). For those tribes without a THPO, consultation regarding undertakings on or affecting tribal lands is still pursued with the tribe’s designated representatives, as well as the SHPO, on the same basis as and in addition to the SHPO. Federal agencies are also required to consult with Indian tribes, Alaska Natives, and Native Hawaiian Organizations that attach traditional religious and cultural significance to historic properties regardless of their location. The importance of regular and meaningful consultation between federal agencies and Indian tribes was further strengthened in November 2009 when President Obama signed a Presidential Memorandum to reinforce the Clinton Administration’s E.O. 13175 that mandated agency consultation with Indian tribes regarding federal policies with tribal implications. This executive order also required each federal agency to prepare its own plan for carrying out consultation. The Advisory Council on Historic Preservation (ACHP), itself a federal agency, issued its own plan in February 2010 entitled Consultation Process Pursuant to E.O. 13175: Consultation and Coordination with Indian Tribal Governments. The U.S. Department of Transportation issued Order 5301.1, Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes in November 1999. The nature of the tribal consultation process continues to evolve, and more collaborative approaches are developing throughout the entirety of the Section 106 process. Collaboration, like consultation, often reveals different styles of communication, interpersonal or group interaction, and patterns of decision- making that must be understood to achieve a mutually positive outcome. In addition to cultural differences, participants also find themselves confronting new challenges as well as a wealth of understanding created by working together. 1.1 RESEARCH OBJECTIVE The research objective of NCHRP Project 25-25, Task 114, “Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources,” is to explore how unique tribal perspectives and expertise could inform the tribal engagement and consultation process associated with the requirements and intent in the Section 106 process for successful project outcomes on surface transportation projects. NCHRP Task 114 follows NCHRP Task 79 (completed in 2013), “Successful Practices for Effective Tribal Consultation,”1 which identified the best existing consultation programs and the common elements that seem to make the greatest difference in achieving success. NCHRP Task 114 uses the contextual framework of the current state of the practice to incorporate traditional expertise into identifying effective approaches for expanding standard field and research methodologies, and the treatment and protection of places of religious and cultural significance to tribes, to achieve collaborative and meaningful approaches to

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 2 resolving adverse effects. The study identifies best practices that could bridge the divide between tribal and agency evaluation to achieve successful outcomes and identify where future research might be conducted to close the gap. NCHRP Task 114 expands on the consultation process to focus on the active participation of tribes in the Section 106 research and survey processes and identify how best to incorporate unique tribal expertise and perspectives into the identification of historic properties, including identification of areas of potential effect, defining the level of effort to identify historic properties, and evaluating NRHP eligibility; the assessment of effects, including making findings of no historic properties affected, no adverse effect, and adverse effect; and the resolution of adverse effects, including the monitoring of agency implementation of commitments for resolving adverse effects stipulated in agreement documents. .