Tribal Consultation Programmatic Agreement

1
Tribal Consultation Programmatic Agreement

• Among the NDDOT ND Division of FHWA Fort Peck
  Assiniboine Sioux Tribes Turtle Mountain Band
  of Chippewa Indians Mandan, Hidatsa, Arikara
  Nation Spirit Lake Dakotah Nation
  Sisseton-Wahpeton Oyate Standing Rock Sioux
  Tribe Northern Cheyenne Tribe Crow Tribe
  (Apsaalooke Nation) and Lower Sioux Indian
  Community.

2
Internal Issues

• Upper Management Presentation
• to
• NDDOT and ND Division of FHWA

3
Tribal Consultation Initial Steps

• Visits to Reservations
• Project Consultations Field Reviews

4
Jamestown Bypass Field Review And Consultation
Meeting

• Consultation with Spirit Lake Dakotah Nation,
  Sisseton-Wahpeton Oyate, Standing Rock Sioux
  Tribe.

5
Highway 2 Field Review

• Consultation with Ron LittleOwl Three
  Affiliated Tribes and Standing Rock Sioux Tribe

6
Programmatic Agreement

• Beginning Efforts
• Turtle Mountain Band of Chippewa Indians
• Initial Try at PA was abandoned Conflict over
  Tribal Monitors
• A few years later we renewed our efforts
• Went to each Reservation
• Asked what they envisioned
• I wrote a first attempt based upon what we heard

7
Initial Meeting at each Reservation

• Discuss the types of projects we undertake, our
  varying levels of involvement, typical impacts,
  and typical cultural resource section
  involvement.
• The STIP
• Highways adding lanes, city bypass, regrade,
  surfacing with safety work, grade raise,
  guardrail, bridge replacement, signing.
• Counties widening, regrade, new routes,
  guardrail, bridge replacement, signing.
• Cities widening, new streets, bridge
  replacements, lighting, signing.
• TE bike paths (city and rural), rest areas,
  interpretive displays, tree planting, scenic
  byways/backways.
• Material Source Areas

8
Initial Meeting at each Reservation

• Discuss the laws, and regulations detailing
  mandated consultation relative to cultural
  resource issues for Federal Highway undertakings.
• Native American Graves Potection and Repatriation
  Act, ND State Burial Law, National Historic
  Preservation Act, National Environmental Policy
  Act
• Most NDDOT projects take place off Federal and
  Tribal lands. As a result, NAGPRA is not an
  issue or guiding law/regulation for Native
  American consultation on NDDOT projects. While
  NEPA has provisions for public involvement it
  does not specify Native American consultation.
  We are initiating the consultation process under
  NHPA.

9
Initial Meeting at each Reservation

• Issues that need resolution
•  
• What tribes should the NDDOT and FHWA consult
  with?
• Does each tribe want to be contacted for projects
  in all of North Dakota, or are there portions of
  the state we can exclude for specific tribes?
• Are there types of projects we can exclude from
  consultation at the project level and consult
  only if we identify cultural resources and have
  the potential to affect them?
• How does each tribe wish us to consult? The
  regulations provide for consultation at specific
  points throughout the Section 106 process, but do
  not stipulate methods of consultation.
• Do we want agreements reached today formalized in
  a Programmatic Agreement - formal document
  specified under the NHPA?
•  
• Who is our consultation contact with each tribe?
  Should we pursue other interested parties within
  the tribe or should all contact be through the
  designated tribal official?
• Do you also want to continue to receive NEPA
  Solicitation of Views letters for all projects?
  Some projects?

10
Programmatic Agreement

• Meetings to Finalize the PA
• November 2005
• April 2006
• Signing Ceremony November 2006

11
Reworking Previous Draft of the Programmatic
Agreement April 2006 Meeting

• Back row - Calvin Grinnell (MHAN), Conrad Fisher
  (N Cheyenne), George Reed, Jr. (Crow), Kent Good
  (KGA Consultant), Brady Grant (TMBCI), Byron
  Olson (SRTHPO Archaeologist), Greg Wermers
  (NDDOT), Front row Elgin CrowsBreast (MHAN),
  Dianne Desrosiers (SW Oyate), Jeani Borchert
  (NDDOT), Mark Schrader (FHWA), Frankie Jackson
  (SW Oyate), and Bob Christensen (NDDOT).

12
Working Through Issues
13
Programmatic Agreement

• The Signing Ceremony

14
Signing CeremonyNovember 2006

• Tribes Represented
• Spirit Lake Dakotah Nation
• Standing Rock Sioux Tribe
• Three Affiliated Tribes
• Turtle Mountain Band of Chippewa Indians
• Sissteon-Wahpeton Oyate
• Lower Sioux Indian Community
• Northern Cheyenne
• Crow
• Fort Peck Assiniboine and Sioux Tribes

15
Signing CeremonyNovember 2006

• All Nations Drum Group

• Redrock Drum Group

16
Signing CeremonyNovember 2006

• Ambrose Littleghost, Spirit Lake

• Conrad Fisher, Northern Cheyenne

17
Signing CeremonyNovember 2006

• Curley Youpee, Fort Peck

• Franky Jackson, Sissteon-Wahpeton

18
Signing CeremonyNovember 2006

• Elgin CrowsBreast, Three Affiliated

19
Programmatic Agreement

• Just what does it do?
• http//www.fhwa.dot.gov/resourcecenter/teams/envir
  onment/tribal_consult.pdf

20
The Programmatic AgreementMain Points

• Working as a group 9 Reservations
• Acknowledges the joint commitment of the FHWA,
  the NDDOT and the Tribes to establish a
  relationship of mutual trust and respect
• Acknowledges that we all aspire to engage in
  meaningful, long-term planning for the
  appropriate consideration of cultural resources
  important to the tribes
• Includes a list of project types excluded from
  consultation

21
The Programmatic AgreementNuts and Bolts

• We have formed a Tribal Consultation Committee to
  meet at least 2 times during the year
• The Committee will consist of 2 members from each
  reservation, at least one from the NDDOT, and one
  from FHWA Division Office
• We will use the STIP in our meetings as part of
  efforts to notify them of upcoming projects
• We will provide them a packet of information for
  projects we will be working on in the near future
  to include maps, aerial coverage, or other
  pertinent illustrations
• The NDDOT will provide the Committee an
  explanation of decisions reached in regard to
  project effects on cultural resources of concern
  to the Committee

22
The Programmatic AgreementNuts and Bolts

• The NDDOT will continue to meet with the Tribes
  at each Committee members individual office at
  least once per year
• The FHWA and NDDOT acknowledge the need for
  confidentiality of certain tribal spiritual and
  cultural information that may be provided during
  the course of tribal consultation
• The NDDOT will host the meetings and will pay for
  up to two representatives from each participating
  reservation to attend (payment currently includes
  travel expenses, motels rooms, per diem, and a
  300 fee)

23
The Programmatic AgreementNDDOT Mission Statement

• Acknowledges the NDDOTs commitment to the design
  and construction of a transportation system that
• 1) safely moves people and goods
• 2) avoids, minimizes, and mitigates adverse
  effects on cultural resources
• 3) recognizes that consideration of tribal
  interest in preservation of significant cultural
  resources is important to Tribal well-being,
  growth, and prosperity and
• 4) responds to the needs of North Dakota
  communities and the Tribes.

24
Implementing the PA

• The PA has been in use for 1.5 years
• The Committee has reviewed projects from the STIP
  level through Section 106 and NEPA compliance
• The Committee has taken bus trips to view
  specific project areas
• The Committee has conducted Sensitivity Training
  for NDDOT archaeological consultants
• The Committee is currently functioning as a
  Participating Agency through the NEPA process on
  a proposed new county road through the badlands
  of western North Dakota
• The Committee is working to get approval to
  implement a program of Tribal Monitors at the
  identification stage

25
Ongoing Issues

• Confidentiality of Information
• Funding financial rules (Federal and State)
  that impede effective consultation
• Meetings
• Food
• Tobacco
• Gifts