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 24 6.0 EFFECTIVE PRACTICES FOR INTEGRATING TRIBAL EXPERTISE INTO THE SECTION 106 PROCESS The responses to both the online survey and the interviews are compelling and provide a roadmap to the key findings and results of the study. Although the response rate was not as robust as the project team had hoped, all respondents provided thoughtful answers to the questions posed. This is especially evident in the responses received from the online survey. Originally conceived as a quick multiple-choice survey, providing respondents with the ability to “Explain” any of their answers was successful in collecting detailed responses. This study benefits from the willingness of the respondents to provide additional comments and reinforces the need for inclusivity when seeking positive outcomes to challenging situations. In 36 CFR § 800.16(f), consultation is “the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the Section 106 process.” In the context of this study, the project team considers consultation to be a discussion. It is a dialogue among multiple participants in which different approaches, ideas, and perspectives are taken into consideration. Effective consultation is possible when respectful exchange allows all participants to be heard. Consultation is not possible in a static context, nor does it have a predetermined outcome — consultation is dynamic, ongoing, collaborative, and transformative. The key discussion points from this study of tribal expertise and the Section 106 process are the following. • Establishing protocols for integration of tribal expertise into the Section 106 process. • Identification and evaluation of places of religious and cultural significance to tribes. • Resolution of adverse effects. • Providing feedback to tribes. Each of these is discussed in detail below. 6.1 ESTABLISHING PROTOCOLS Several of the DOTs noted that they are in the process of developing formal protocols. Consultation with tribal partners in developing such protocols will be an important element in their successful implementation, along with consideration of how best to put the protocols for positive outcomes into operation. From the state DOT perspective, face-to-face interactions with tribes are an effective way of incorporating tribal expertise into all steps in the Section 106 process. As one state DOT noted, a well-established trust relationship is a key factor in the successful inclusion of tribal expertise in the Section 106 process. In addition, developing non-binding MOUs or CPAs could be a helpful strategy in fostering and maintaining relationships with mutual understandings and outcomes that are more predictable. The use of MOUs and CPAs may be a better tool than PAs to establish how to incorporate tribal expertise in all steps in the Section 106 process, using a collaborative approach. Using these tools may address tribal concerns about state DOT PAs, especially statewide delegation PAs that include stipulations on the nature of tribal consultation. The concern with these approaches, from a state DOT perspective, is the capacity of tribes to participate in these efforts.

Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources 25 From the tribal perspective, agencies need to make sure to reach out to tribes to learn what their research questions and interests may be and bring these into the research design for a project, as part of thoughtful, collaborative research. In addition, agencies 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. One tribe noted that sometimes there are differences in perspective, and the parties need to overcome that. It is important to talk through any challenges. The bottom line is that sustained communication leads to effective consultation and in turn to collaboration. 6.2 IDENTIFICATION AND EVALUATION The survey and interview responses clearly show tremendous range in the manner of outreach to the tribes and the level of involvement in identifying and evaluating resources of significance to them. Consultation with tribal partners on how best to involve them is important and may vary depending on the nature of the undertaking and the potential concerns from the tribal perspective. Effective integration of tribal expertise will not happen if outreach to tribes is scaled up or down based on the kind and size of the undertaking, or by determining that only tribal monitoring will be necessary or providing the results of a survey completed by a consulting firm without prior consultation with the tribe. A more direct approach is to have tribes conduct the investigations to identify TCPs and, in some cases, archaeological sites, and to provide the results of these investigations to the state DOTs. If contracting tribes is not possible, another approach is for the state DOT to hire a consultant recommended by a tribe or to have tribal experts work collaboratively on the team of a state DOT’s cultural resource management consultant. Such expertise should begin in the early planning phases and continue throughout the project lifecycle, culminating in a feedback exchange that evaluates how tribal expertise was used in decision- making and an evaluation of what worked and what did not. 6.3 RESOLUTION OF ADVERSE EFFECTS The respondents provided little discussion of their active engagement in decision-making for the resolution of adverse effects. Having formal protocols for incorporating tribal expertise or working collaboratively to develop agreements may result in better outcomes in the consideration of different approaches to the resolution of adverse effects than may be possible through informal consultation alone. When tribal participation is limited and there is little or no integration of tribal expertise in the Section 106 process, the result will be standard approaches. Tribes need to be full partners in the development and implementation of measures to resolve any adverse effects to places of value to tribes. 6.4 PROVIDING FEEDBACK Tribes often do not know what the final decision is on a project; there can be a breakdown in the feedback loop. This observation mirrors the results of the GAO report on how federal agencies conduct tribal consultation. Tribes would like to know on every project what the final decision is and how agencies considered tribal concerns in decision-making. Tribes need to rely on agencies to provide this feedback because tribes cannot follow up with all agencies given tribes’ involvement in hundreds of consultations. Feedback is critical, and so is a team debrief on how well the process worked, where improvements may be needed, and how best to share the approaches that led to success.