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 16 5.0 RESULTS OF INTERVIEWS A critical element of this study is exploring how the FHWA and state DOTs consider tribal expertise during all steps in the Section 106 process. Another critical element of this study is to document tribal perspectives on how well (or whether) FHWA and state DOTs consider tribal expertise during the steps in the Section 106 process. To follow up on the online survey, interviews were undertaken with a select group of DOTs, along with outreach for an interview to all the online-survey-responding tribes, and additional tribes as recommended by the NCHRP Task 114 panel. Additional outreach to selected federal agencies resulted in one response. The goal was to provide additional insights into best practices and practical guidance associated with using tribal expertise during all steps in the Section 106 process. All potential interviewees had a choice of either completing and sending to the project team a completed interview questionnaire or participating in a telephone interview based on the questionnaire. The project team received completed interview forms from, or conducted interviews with, seven state DOTs, two tribes, and one federal agency. The interview/questionnaire responses are presented in Appendix B with only minor editing of original responses. In addition, the identity of respondents has been shielded as possible. 5.1 INTERVIEW OBSERVATIONS 5.1.1 STATE DOTS 1. In your experience what have been the most effective approaches for incorporating traditional tribal expertise into the Section 106 process? [Seven responses] Meetings. Many states meet with tribes on a regular basis, such as annually. During these meetings, the state DOT and tribes discuss approaches and perspectives as a group. An important element of these meetings is discussion on how to or how not to share tribal information with others. Tribal Participation in Field Investigations. Some state DOTs have tribal members work in the field with the state DOT archaeologists, where tribal members provide insight into the use of the site. One state DOT has set up several intergovernmental work agreements (contracts) with tribes to provide field investigation services (both inventory and archaeological site testing and evaluation), in addition to agreements for conducting ethnographic research. In absence of having an agreement with a tribe, the state DOT’s contractors bring tribal members onto their projects. And in some cases, a tribal elder may come out to a site being investigated by archaeologists, to provide tribal expertise at no expense. Some tribes like this approach. Another state DOT noted that any time there might be traditional cultural property (TCP) issues; the state DOT will use tribes as the experts. The state DOT will 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). The state DOT, however, has found that ethnographers are not experts in Section 106 when it comes to National Register evaluations. The state DOT needs to tell them that they have to make explicit eligibility findings, along with effects findings, in their reports. The state DOT has to educate these ethnographers about these aspects of Section 106 compliance.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 17 Timing. One state DOT said they have found that when dealing with tribal issues (i.e., presence of TCPs), project delivery takes longer to accomplish, and therefore starting early is critical when you need to bring in tribal expertise. A few state DOTs noted that tribal participation is often dependent on a number of factors, including the tribe’s capacity, ability, and willingness to participate. A tribe’s willingness to share knowledge is also a factor. Resolution of Adverse Effects. One state DOT noted that they apply tribal expertise as part of the resolution of adverse effects to archaeological sites. An example is the development of interpretive panels along hiking trails, in connection with one of the state’s 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. 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 resource investigation. Other examples involve 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. This state DOT also invited consulting tribes to contribute their own ethno history chapter in the cultural resource technical reports (unedited by the state DOT, 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 state DOT noted that outcomes of this effort have been mixed and are dependent on a number of factors, including the tribe’s capacity, ability, and willingness. As part of mitigation, this state has also conducted oral histories. One oral history effort was augmented with archival research and documents. 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. 2. In your experience what have been the least effective approaches for incorporating traditional tribal expertise into the Section 106 process? [Six responses]

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 18 Most of the respondents noted that sending letters is not an effective approach to engaging tribes about their expertise and knowledge. Telephone discussions may work in some cases. In addition, the state DOT staff person engaging tribes should be a subject matter expert (SME) with experience working with 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? [Six responses] As noted above, some state DOTs have tribes conduct inventories or participate in inventories alongside archaeologists. One state has tribal participants on all their projects. One state DOT noted that their standard archaeological inventory and research methods have been scaled back at times when tribes have expressed opposition to scientific archaeological analysis because of the tribe’s cultural beliefs. These instances are considered successful in the sense that the state DOT was 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. The state did note that there is often tension around the consultation and their efforts to find a suitable balance. One state DOT said the tribes they work with look to the archaeological investigations as a basis for tribal input. 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. In these cases, the state DOT incorporates this landscape approach with archaeological evidence. Taking this approach provides a context for understanding the significance and value of sites and TCPs. Another state DOT noted that to expedite things, the state DOT works with tribes on the ethnographic surveys and the results of this work are reported separately. This work is not combined with reports on archaeological investigations. The state DOT does continue to combine built environment and archaeology investigations into one study and report; and it is clearly noted in the combined report that the findings in this report 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? [Seven responses] All the state DOTs noted that these integrated and collaborative approaches benefited execution of all steps in the Section 106 process, including resolution of adverse effects. These approaches were described as invaluable, appropriate, and resulting in more meaningful outcomes than standard approaches. In addition, these approaches resulted in the early identification of issues important to tribes and allowed the full consideration of project changes to avoid places of value to tribes. Further, tribes felt they were full participants in the Section 106 process. 5. Has such an approach improved relationships and understanding between agencies and tribes? [Seven responses]

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 19 As with the above question, all the state DOTs said these approaches improved relationships and understanding with tribes. As one state DOT noted: 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 get to visit. It has enhanced our mutual understanding of many sacred and valued resources and transportation project needs. One state DOT did note: There are, however, situations where, in spite of good, successful collaborations, the department continues to struggle with maintaining good relationships with some tribal partners. Having a history of working with tribes facilitates working with new tribal staff. One state DOT noted that they reach out to new staff and show them the protocols with the previous person in their position. The state DOT introduces what has been established before and asks if anything needs to change with the new person. Doing this does take some effort and is not always easy, given the heavy workload among state DOT staff. 6. What have been the challenges to establishing such a collaborative approach? [Seven responses] Here are some of the challenges identified by DOTs. • Relationships do not develop overnight, and relationships are what you need to have for effective collaborative approaches. • As tribes receive inquiries from multiple agencies regarding a variety of projects, many of them have limited capacity to engage fully in the process, which poses a challenge to the inclusion of tribal knowledge/expertise. • Some tribes and/or their elders are reluctant 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 are always continuous and ongoing. A well-established trust relationship is a key factor in the successful inclusion of tribal knowledge in the Section 106 process. Developing non-binding MPUs or Consultation Protocol Agreements (CPAs) could be a helpful strategy in fostering and maintaining relationships with mutual understandings that have outcomes that are more predictable. • Traditional tribal values can directly conflict with scientific archaeological inquiry. Some tribes are skeptical of archaeology and reject the 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.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 20 • Timeliness is an issue in terms of getting survey results and ethnographic studies reports from tribes. Tribes are busy with all sorts of other events and responsibilities, so the DOT needs to consider these timing issues during project scheduling. 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)? [Seven responses] One state DOT discusses the projects in the STIP with tribes, and a second informs tribes about planned projects through an online notification system. Another state said, if the CRM staff know about projects in planning that may potentially involve tribal issues, they reach out to tribes. The other state DOT respondents do not engage tribes during early project planning, but a few of these states noted that they are either in the process of developing approaches for this early engagement or are planning to do so in the future. For example, one state is 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. 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)? [Seven responses] The responses to this question were similar to Question 2. On this topic, one state DOT noted: 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…some tribes have transportation planning departments and staff who work on planning processes, but 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. 9. Based on the results of the recent Government Accountability Office 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)? [Seven responses] All but one of the DOTs said they provide feedback to tribes and obtain comments on this feedback, and this was done generally through face-to-face project meetings, especially those associated with investigations where the tribes are carrying out the work. One state DOT said they use webinars for larger projects to provide feedback to tribes. 10. If you do, how is this feedback provided? [Six responses] See responses to Question 9.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 21 11. Are tribes provided an opportunity to comment on this feedback information? [Six responses] See responses to Question 9. 12. How are disagreements that may arise during this feedback effort resolved? [Six responses] One DOT said that they simply work out the disagreement, and this may involve going out into the field with tribal members to see if a state DOT has recorded cultural resources appropriately. A second DOT noted that agencies first need to be respectful of these disagreements. The DOTs need to show a record of outreach and engagement as a way of showing the work was a good faith effort, and if a place of value to a tribe is being affected, to look into a design exception or other approach to void the place, if possible. Two DOTs noted that they have not experienced such disagreements. 5.1.2 TRIBES Two tribes responded to requests for interviews. 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? The first tribe noted that they consult in 10 different states. In certain states there is consultation but in other states the tribe is not consulted at all and there is no effort to see in what the tribe is interested. Typically, standard methods have not been altered. The tribe has had the opportunity to be involved in projects when they were aware of the project and had been informed. They have also had opportunities to monitor and do site visits as needed. They also do quality reviews, check certain projects as needed, and go back to sites to see if anything else needed to be done at the sites. The second tribe noted that it is common for all Phase I/identification efforts in their state 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 a 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. This tribe has dispensed with standards when it comes to curation. Agencies need to take into consideration any cultural perspective on items that should not be taken from the landscape. In addition, systemic issues have driven curation fees to $2,500/box. The appropriate approach is to be thoughtful about leaving material in the ground and doing recordation in the field, but also to respect those situations in which some analyses may be needed to broaden understanding. Agencies need to make sure to reach out to tribes to learn what their research questions/interest may be and bring these into the research design for a project, as part of thoughtful, collaborative research.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 22 In addition, the second tribe identified the need to address the issues of personalities. People need to be willing to work with tribes and have productive conversations, including the 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. In addition, tribal and agency staffs need to have the appropriate professional background, being able to review the work plans and provide productive comments. Finally, the tribe needs to be involved at all levels, including during fieldwork. If the tribe has concerns, there will be a tribal monitor (typically with eight to 15 years of experience) placed in the field with the CRM firm to ensure the work is completed to the professional standards expected by the tribe. 2. Was the approach successful? Why or why not? The first tribe noted that when consultation exists, the tribe is always able to participate and feels that all concerns are being addressed. The second tribe said the approach was successful and referred to their response to Question 1. 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? The first tribe said no to this question, although they heard that South Dakota has an excellent consulting environment. The second tribe referred to their response to Question 1. 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? The first tribe said such approaches were beneficial. The tribe did note that in areas where there is sensitivity, the tribe is typically involved in monitoring but is not involved in the review of the project report before completion. Sometimes they take issue with the historic context/tribal history in the final report, which are mostly boilerplate histories pulled from old sources. The second tribe also said such approaches were beneficial. There is often collaboration with enlightened archaeologists. There have been missteps, however, such as a great focus on PAs, which are often misused and thrust upon tribes. The goal is “to kick the can down the road and do Section 106 later.” This puts tribes in a situation where they are doing salvage archaeology and shortchanges the opportunities to come up with smart, creative solutions and discuss avoidance. PAs are being pushed out of state DOT headquarters and the concern is that “they are playing fast and loose when the desire should be to take care and to be thoughtful.” 5. Has such an approach improved relationships and understanding between agencies and tribes? This first tribe said yes, particularly on an individual basis with persons in the agencies. These improved relationships and understandings make consultation easier and more productive.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 23 The second tribe referred to their answers above. They did note that sometimes identification is the end of consultation; once a resource is identified, that is it and agencies make the decision. Tribes need to be part of reaching the decision. In addition, SHPOs do not ask if tribes have been consulted and SHPOs make calls without tribal input. There is an uneven process driven by personalities and there is 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? The following are the challenges identified by the two tribes. • 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. • Rarely is there any looping back on a project. The tribe often does not know what the final decision is, so there is a bit of a breakdown in the feedback loop. The tribe 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. The tribe receives hundreds of letters a month and so are selective about those they follow up on directly. Tribes would like to know when a decision is made, for their records and for follow-up. • Additional observations — states that have a tribal liaison 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. • The tribe signed an MOU with a state DOT. The process of writing it was beneficial to relationship building, and having such an agreement lets everyone know what they are doing and what to expect. • It is important that the totality of a cultural resource be captured. There is a need to understand the landscape. If a tribal resource is identified, the tribe should have a veto on decision-making. Archaeology and tribal worldviews need not be diametrically opposed. Community-Based Participatory Research is a great guide to achieve good tribal consultation. Agencies are not stewards of the past — archaeology is a tool, not a philosophy. There is no need for confrontation — tribes have lots of faith in science but there is no need to attach a western worldview. This needs to be a conversation.