In Their Own Light A Case Study in Effective Tribal Consultation North Dakota Department of Transportation (NDDOT)NorthTransportation Department Dakota of

North Dakota Tribal Consultation PA Plaque Honorees, November 2006 Back row: Byron Olson, Archaeologist Standing Rock THPO; Conrad Fisher, THPO Northern Cheyenne; Mark Schrader, FHWA; Curley Youpee, Director Cultural Resources Department Fort Peck Assiniboine and Sioux Tribes; Franky Jackson, Consultant to Lower Sioux Indian Community; Calvin Grinnell, Cultural Resource Specialist, Mandan Hidatsa and Arikara Nation; Allen Radliff, FHWA; Kent Good, Consultant to NDDOT; Elgin CrowsBreast, Cultural Preservation Program Director, Mandan, Hidatsa, and Arikara Nation; Front Row: Francis Ziegler, NDDOT Director; Jeani Borchert, NDDOT Tribal Consultation Specialist; Pam Halverson, THPO Lower Sioux Indian Community; Ambrose Littleghost, Cultural Advisor, Spirit Lake Dakotah Nation; Richard Bird, Jr., Chairman Economic Committee and Councilman at Standing Rock Sioux Tribe; Scott German, Vice-Chairman, Sisseton Wahpeton Oyate; Shannon Blue, President Lower Sioux Indian Community; Dianne Desrosiers, THPO Sisseton Wahpeton Oyate.

Effective Tribal consultation practices advance the Federal Highway Administration’s (FHWA) strategic goals related to environmental stewardship and streamlining, yet resource materials related to effective Tribal consultation in a transportation setting are not readily available— particularly resource materials that provide real-life examples and demonstrate best practices in Tribal consultation. Using the Tribal consultation “success story” from North Dakota as the focal point, Stephanie Stoermer of the Environment Technical Services Team, FHWA Resource Center, developed the following case study to provide a stronger Tribal perspective regarding effective consultation practices and to help fill the identified need for additional Tribal consultation resource materials for the transportation community. In addition to describing the history and context of the North Dakota Programmatic Agreement (PA), the case study affords a broad overview of the regulatory and cultural context for Tribal consultation. The case study shares the lessons that the respective Tribes, as well as the FHWA North Dakota Division and the North Dakota Department of Transportation (NDDOT), have learned from the sustained effort to build lasting relationships and foster an atmosphere of mutual respect and trust. Accordingly, it provides practical insights that other FHWA Divisions and State DOTs should consider from when developing programmatic agreements with either individual or multiple Tribes. —Don Cote, Team Leader, Environment Technical Services Team In Their Own Light

Introduction Places—and to provide the Advisory Council on Historic Preservation (ACHP) with a reasonable The State of North Dakota is situated in the opportunity to comment with regard to such heartland of the northern Great Plains, a unique undertakings. The Section 106 review process geographic area that has been inhabited for seeks to balance historic preservation concerns untold generations by various indigenous with the needs of Federal undertakings by peoples with distinct cultures and lifeways. Due requiring consultation among the agency official to Euroamerican incursions, and the subsequent and other parties with an interest in the effects of settlement of the region in the nineteenth the respective undertaking on historic properties. century, many of the indigenous peoples of the The Secretary of Interior’s Standards and northern Great Plains were forced out of their Guidelines for Federal Agency Historic Preserva- ancestral territories, whereas those who re- tion Programs Pursuant to the National Historic mained in their homelands suffered the loss of Preservation Act provides the following defini- most of their land base. tion of consultation: “Consultation means the As a consequence of this tumultuous regional process of seeking, discussing, and considering history, in addition to the Tribes who now reside the views of others, and, where feasible, seeking on the reservations located within the political agreement with them on how historic properties boundaries of North Dakota, several Tribes in should be identified, considered, and managed.” South Dakota, Minnesota, and Montana also However, for the various parties involved, retain strong ancestral, cultural, and spiritual ties particularly Indian Tribes, the consultation to the area. All of the Tribes—regardless of their process also speaks to achieving mutual trust, current physical locations—possess demonstra- building lasting relationships, and working in a ble concerns regarding cultural resources, collaborative yet culturally respectful manner. preservation of sacred places, the continuing Amendments to the NHPA in the late 1980s destruction of places and things of cultural and early 1990s recognized and expanded the value, and the effects of this destruction on their role of Indian Tribes, Alaska Natives, and Native respective cultural identities. Hawaiian Organizations (NHOs) in the Section Section 106 of the National Historic Preserva- 106 review process. When the regulations tion Act of 1966, as amended (NHPA) requires implementing Section 106 (36 CFR 800, Protec- Federal agencies to take into account the effects tion of Historic Properties) were revised to of their activities and programs on historic clarify the role of Indian Tribes, Alaska Natives, properties—those properties listed on, or found and NHOs, a provision was included that eligible for the National Register of Historic

A Case Study in Effective Tribal Consultation  encourages Federal agencies to enter into Hidatsa, Arikara Nation (Three Affiliated agreements with Indian Tribes and NHOs that Tribes); the Turtle Mountain Band of Chippewa would specify how they would implement Indians; the Spirit Lake Dakotah Nation; the responsibilities under the revised regulations. Standing Rock Sioux Tribe, the Sisseton/ These agreements can address all aspects of a Wahpeton Oyate; the Fort Peck Assiniboine Tribe’s or NHO’s participation and can provide and Sioux Tribes; the Northern Cheyenne Tribe; for additional rights or concurrence in agency the Crow Tribe (Apsáalooke Nation); and, the decisions in the Section 106 review process. Lower Sioux Indian Community to develop Using a proactive approach to developing, and implement a collaborative programmatic executing, and implementing an agreement docu- approach to Tribal consultation that fully ment with multiple Tribes, the North Dakota addresses Tribal concerns about cultural Department of Transportation (NDDOT) and resources that could be affected by NDDOT the Federal Highway Administration’s (FHWA) projects, while considering NDDOT transporta- North Dakota Division, in active collaboration tion project delivery needs. with Tribes in North Dakota, South Dakota, Montana, and Minnesota, tailored the consulta- Tribal Consultation and tion process to meet the needs of all the consult- Evolving Federal Policy ing parties. The resulting Section 106 Program- matic Agreement for Tribal Consultation in The approach to Tribal consultation adopted by North Dakota (PA) takes the intent of the law to the FHWA and the NDDOT in North Dakota heart and gives Tribal people a seat at the table grew out of several years of sustained relation- in consideration of cultural resources that may ship-building between the NDDOT and the be affected by transportation projects. consulting Tribes, with the strong support of The following study examines the efforts of the FHWA North Dakota Division. In order to the NDDOT, and the FHWA North Dakota understand how this approach developed over Division, in consultation with the Mandan, more than a decade, it is necessary to identify

 In Their Own Light and briefly explain the elements of Federal policy “Signing this document represents a real benchmark point related to Tribal consultation that helped to for us all. It’s a great deal of work. We put in a lot here—the shape it. The legal mandate that requires the FHWA Tribes, the DOT, the Federal Highway and the general cultural and other Federal agencies to consult with and historic community. What we do today should result in Indian Tribes on a government-to-government more effective, more efficient Tribal coordination and should basis has existed for more than 200 years. The be for the benefit of us all—for the benefit of transportation consultation requirement was initiated with the Constitution, in Article I, Section 8 (also referred and for the Tribes in North Dakota. It’s going to be a more to as the “Commerce Clause”), which empowers streamlined procedure for us all to follow and it’s going to Congress to regulate commerce and consult with be a great success story highlighting the cooperation we foreign governments, between the States, and with the Indian Tribes. The constitutional enjoy in this State.” mandate to respect Tribal sovereignty also has —Allen Radliff, former FHWA North Dakota Division Administrator been repeatedly expressed in various statutes, executive orders, and policies, including the National Historic Preservation Act of 1966, as account the expanded role of Tribes in the process amended (16 U.S.C. 470) and Executive Order in the absence of implementing regulations. 13175—Consultation and Coordination with Despite the long-standing Federal mandate Indian Tribal Governments (November 6, 2000). requiring government-to-government consulta- From the late 1970s onward, evolving Federal tion with Tribes and evolving Federal policies, policy directed at strengthening the consider- aside from Federal land-managing agencies such ation of Tribal concerns considerably altered the as the Bureau of Land Management (BLM) and relationship among Federal and State agencies the National Park Service (NPS), many Federal and Indian Tribes. When explicit provisions for agencies had little or no experience with Tribal consultation with Indian Tribes and traditional consultation nor did they have formal Tribal leaders were added to the implementing regula- consultation procedures in place. Additionally, tions for Section 106 in 1986, the regulations since the 1992 amendments allowed Tribes to made it clear that the special concerns of Indian assume any or all of the functions of the State Tribes in historic preservation issues often extend Historic Preservation Officer (SHPO) with beyond Indian lands to other historic properties. respect to Federal undertakings on Tribal land, In further acknowledgement of the critical need Tribes could now designate Tribal Historic to consult with Indian Tribes regarding such Preservation Officers (THPOs) with whom historic properties, when the NHPA was amend- Federal agencies would consult instead of the ed in 1992, expanded requirements were SHPO for undertakings occurring on, or affect- included that require all Federal agencies to ing historic properties on, Tribal lands. consult with Indian Tribes on undertakings Understanding who, when, where, and that may affect properties of traditional religious precisely how to conduct meaningful consulta- and cultural significance on or off Tribal lands. tion was problematic at best. Even when Federal By the early 1990s, numerous accounts of agencies were successful in their attempts to Tribal consultation and collaborative effort identify and consult with the appropriate Tribe “success stories” were appearing in cultural or Tribes, many Tribal governments’ limited resource-related periodicals. However, in many resources were often overextended—not only cases, the actual implementation of Tribal by requests for consultation but by increasing consultation procedures was less than optimal. demands from individual or even multiple One of the logistical hurdles facing the partici- agencies for information regarding traditional pants in the Section 106 process during this religious and cultural properties. Differing period was how to conduct appropriate and communication styles and cultural perceptions, meaningful consultation that would take into as well as Tribal concerns about the release of

A Case Study in Effective Tribal Consultation  Under Title 23, U.S. Code, the SDOTs are the responsible agencies for all aspects of project development, including environmental review and archeological survey work before and during construction. Despite the fact that an SDOT, as the applicant for Federal assistance, carries out the many responsibilities related to project development, as a Federal agency the FHWA still has the statutory obligation to fulfill the requirements of Section 106. In crafting 36 CFR 800, the ACHP recog- nized that in the course of fulfilling their Section 106 responsibilities, Federal agencies sometimes choose to rely on applicants to begin the 106 process. Accordingly, Section 800.2 (c) (4) of the Section 106 implementing regulations allows the FHWA, as agency official, to authorize an SDOT, as the applicant for Federal assistance, to initiate consultation with the SHPO/THPO, and others, provided that the FHWA notifies the SHPO/THPO of such authorization. The FHWA retains its government-to-government consulta- tion responsibilities and remains legally respon- sible for all findings and determinations.

Building Relationships In the interval between the 1992 NHPA amend- confidential information to the public regarding ments and the promulgation of the final version these sensitive properties, made building mutual of the implementing regulations, nearly a decade trust and establishing long-term relationships later, NDDOT’s cultural resource professionals difficult. recognized that their agency needed to be more As a result of the 1992 NHPA amendments proactive in the area of Tribal consultation, and the subsequent promulgation of revised particularly since the role of Indian Tribes in the Section 106 implementing regulations, Federal Section 106 process had been greatly expanded. agencies like the FHWA, which distribute and Jeani Borchert, NDDOT archeologist and oversee Federal aid to State and local applicants current NDDOT Tribal Liaison later recalled: but who themselves do not own or manage land, were faced with additional challenges, as were So many of us who work in cultural resources their State and local partners. As a Federally began to consult with the Tribes—at least on assisted, State-administered partnership, the an occasional basis—many years ago but it re- Federal-aid highway program makes Federal-aid ally wasn’t enough . . . the mandate in the 1992 highway funds available to the State Depart- amendments to the National Historic Preserva- ments of Transportations (SDOTs), who in turn tion Act changed that approach. It required that work with local officials to decide which trans- we include Tribes in consideration of effects portation projects are developed. The FHWA’s to historic properties. In 1999, the regulations role is to provide oversight and cooperate with implementing those changes to the National SDOTs to ensure compliance with Federal Historic Preservation Act were in place, and to requirements such as NEPA and NHPA. the NDDOT and the North Dakota Division

 In Their Own Light of Federal Highways’ credit, it was decided to he discusses his experiences today, Good grate- approach these changes from a proactive per- fully acknowledges the positive role that Tribal spective—fulfilling not only the letter of the law people have played in teaching him patience and but its intent. To make Tribes our partners in respect. considering the effects of transportation projects Reflecting on those early attempts at sparking on places of cultural importance. meaningful cross-cultural dialogues, Good says:

Veteran archeologist Kent Good (now retired My brother Ambrose and my sister Anna from the NDDOT) is credited with launching [Littleghost] taught me that you wear your the NDDOT Tribal consultation effort. By heart on your head. I’d always been accused Good’s own account, when he came to the of wearing it on my sleeve my whole life and NDDOT in 1989 as the agency’s only cultural in our culture that’s not a good thing. You’re resource person: “To say the least it was a not calculating enough, you’re too much of a challenge. And when the law was amended to feeling person. That’s just the way I am. But include consultation . . . I had the opportunity to I was really glad to find out that it’s OK to be start the consultation process. I had no manual, a feeling person and with Tribal people you I had no book, I didn’t know really what I was wear it on your head—it governs the way that doing, other than that I love people. And I think you feel. So I approached it from that point of my heart was in a good place.” So, on behalf of view, with a heart and above all with respect. the NDDOT, Good set out to meet with the And I respect all people. Tribes and to begin laying the foundation for future consultation efforts. Good’s efforts in building personal and profes- As he traveled to the reservations within sional relationships with the Tribal representa- North Dakota to meet with the Tribal leaders, tives were a major contribution in creating the Good’s resolve was often tested and there were existing climate of mutual trust. As Robert several instances when he needed to make Christensen, NDDOT Cultural Resource Section repeated visits before he could arrange meetings Leader, observes: “Only after this foundation of with the appropriate individuals. Building trust trust was established could we really, truly move and forging relationships was not always easy, forward with meaningful consultation of any and at times the learning curve was steep. When kind. Even though the Tribal representatives

A Case Study in Effective Tribal Consultation  “The agreement acknowledges the DOT’s commitment to the meeting in Jamestown, North Dakota, with design and construction of a transportation system that safely representatives from the Spirit Lake Nation, Turtle Mountain Band of Chippewa Indians, moves people and goods. One that avoids, minimizes, and Standing Rock Sioux Tribe, and Sisseton- mitigates adverse effects on cultural resources. It recognizes Wahpeton Oyate after several stone features and the consideration of Tribal interest in the preservation of mound sites were identified within a mile wide corridor. Tribal representatives were taken to significant cultural resources is important to Tribal well-being, visit the sites and asked what they knew about growth, and prosperity. And it also responds to the needs of the project area. More importantly, the consult- the communities on and off the reservations in North Dakota.” ing Tribes were asked what they thought needed to be done. The Tribes indicated that the area —Francis G. Zeigler, P.E., Director, NDDOT was indeed significant and that the features and mounds were there because of the crescent in the river. They wanted to see this area protected. have changed through the years, as has the As a direct result of the consultation, the NDDOT Tribal consultation person, this NDDOT and the FHWA rerouted the proposed foundation of trust allowed the process to by-pass to the east of the sites and purchased continue smoothly.” protective easements around the sites bordering Over the next few years, NDDOT’s consulta- the crescent in the river to protect them from tion outreach efforts extended beyond the development that might spring up along the political boundaries of the State of North bypass. Accordingly, an agreement to this effect Dakota. Eventually, individual consultation was was executed by the FHWA, NDDOT, SHPO, taking place with eleven Tribes from eight and the respective consulting Tribes in 2000. reservations. Traditional cultural and spiritual For the U.S. Highway #2 Minot to Williston leaders and Tribal elders also were consulted and project, the NDDOT discussed the project with included in the decision-making process for the five Tribes with which they currently were several projects. For most regular projects, working, namely the Three Affiliated Tribes, NDDOT only consulted with the Tribes when Spirit Lake Nation, Turtle Mountain Band of archeological sites had been identified. NDDOT Chippewa Indians, Standing Rock Sioux Tribe, representatives would visit each reservation, and Sisseton-Wahpeton Oyate. Both the Stand- provide documentation, discuss the issues, and ing Rock Sioux Tribe and Three Affiliated Tribes then summarize the discussions on a consulta- requested that NDDOT work with Ronald tion form that all would sign. NDDOT would (Sam) Little Owl. The NDDOT took Mr. Little then follow-up according to the terms of the Owl to each site and recorded his interpretations respective signed agreement. and discussions of the importance of each site. The foundations of a collaborative approach With Mr. Little Owl’s permission, the recording between NDDOT and the Tribes—as well as was transcribed and non-sensitive information NDDOT’s heightened levels of sensitivity and was later summarized for the NEPA document. commitment to Tribal cultural and spiritual The NDDOT also took Mr. Francis Cree concerns—were established during the decade or (Turtle Mountain Chippewa), Ms. Jane Martin so of project-by-project consultation. Valuable (Turtle Mountain Chippewa), and Ms. Pemina insights were gained during consultation with Yellow Bird (Three Affiliated Tribes) to visit multiple Tribes on individual projects, particu- certain sites in the White Earth Valley. Ms. larly such projects as the Jamestown Bypass Yellow Bird also accompanied Mr. Little Owl and U.S. Highway #2 Minot to Williston. These on another occasion. During discussions with insights would later help to shape the direction Ms.Yellow Bird and Mr. Little Owl, it was of the final PA. suggested that NDDOT needed to consult with As part of the consultation for Jamestown the Fort Peck Assiniboine and Sioux Tribes and Bypass project, NDDOT convened a 2-day the Crow Tribe (Apsáalooke Nation) from

 In Their Own Light Montana. The NDDOT followed through on features determined eligible for the National this suggestion. Register were completely avoided, while other When Kent Good contacted the Fort Peck stone features were left intact by narrowing the Assiniboine and Sioux Tribes and the Crow Tribe median and changing the slopes and ditch (Apsáalooke Nation) to initiate consultation for bottoms. The consulting Tribes were very the project, Mr. George Reed, Secretary of Cul- pleased that the NDDOT actually found a tural Education for the Crow Tribe (Apsáalooke way to leave all of the stone features in place. Nation), indicated that NDDOT needed to consult NDDOT representatives continued to visit with the Northern Cheyenne Tribe as well. The each reservation on a regular basis to build and U.S. Highway #2 Minot to Williston project would sustain relationships as well as to share informa- mark the beginning of consultation efforts with tion. As previously noted, although the FHWA Tribes residing in Montana who have ancestral ties cannot delegate its government-to-government to North Dakota. responsibility and overall consultation and It was clear from consultation on the U.S. coordination duties, the agency may rely on Highway #2 Minot to Williston project that SDOTs to carry out day-to-day and project the Tribes primarily were concerned with specific consultation, as long as the respective impacts to extant stone features. As a result, Tribes agree, per Section 800.2 (c)(4) of the NDDOT engineers worked very hard to avoid Section 106 regulations. With this in mind, Kent direct impact to these features. The stone Good and Cal Larsen, the North Dakota FHWA

A Case Study in Effective Tribal Consultation  Division Office’s former environmental coordi- this would be to develop agreement documents nator, visited each reservation and asked the that would identify and meet Tribal expectations respective Tribe or Tribes whether they objected regarding cultural heritage issues, as well as to NDDOT’s continued role in day-to-day increase the likelihood that future Tribal consul- consultation on behalf of the FHWA. All of tation would lead to acceptable outcomes for all the Tribes agreed that the existing arrangement the stakeholders. was satisfactory and should continue. Because such a heightened effort would require an additional investment of limited resources, the proposal was elevated to NDDOT Taking a Collaborative management for their consideration. Citing the Approach existing level of commitment to Tribal consulta- Although project-specific consultation with the tion and a successful track record—as well respective Tribes on an individual basis contin- as the identified need to remain proactive in ued to be the standard operating procedure, the the constantly evolving Section 106 arena— NDDOT cultural team identified the critical the proposal demonstrated that an additional need to refine NDDOT’s approach to consulta- investment could lead to future savings in tion. According to Jeani Borchert, once relation- the delivery of transportation projects. ships with Tribal representatives were firmly With the approval of their upper-level manage- established, NDDOT recognized the need to ment and the support of the FHWA Division formalize the process according to the needs of Office, the NDDOT cultural staff actively began the respective Tribes. One way to accomplish to explore opportunities to develop individual

 In Their Own Light agreement documents with the Tribes with whom “If you go in with a good heart, the process will develop NDDOT and FHWA had been consulting on a appropriately for all those involved. So ‘best practices’ is really project-by-project basis. While the initial attempts having the ‘heart’ to consult.” were not particularly successful, in the course of trying to develop the individual documents, —Jeani Borchert, NDDOT Tribal Liaison conversations arose between the NDDOT and several Tribes regarding the possibility of develop- ing a programmatic agreement with multiple quently incorporated into the final agreement Tribes that would be drafted with a significant document. Although the concerns identified by amount of Tribal input. the participants as important to address in the As previously noted, NDDOT initially sought PA are not necessarily identical, they tend to to develop agreement documents with the Tribes complement each other and reinforce the overall individually rather than collectively. Through collaborative spirit of the PA. NDDOT’s efforts to identify and address Tribal The consulting Tribes believed that the concerns, however, the concept of a unified primary concerns that needed to be addressed in group approach developed and gradually gained the context of the PA were acknowledgement of momentum. The NDDOT not only nurtured their cultural identities—who they are—in regard existing relationships, but they also fostered new to the language and the “heart” expressed in the ones by requesting Tribal input and identifying document; commitment to providing an explana- potential Tribal concerns about the consultation tion of management decisions reached by the process. NDDOT and the FHWA in regard to issues of Rather than going to the Tribes with precon- concern to them; confidentiality of information ceived notions and draft agreement documents discussed with the NDDOT and the FHWA that in hand, the NDDOT first went to them and the consulting Tribes regard as sensitive and asked what each Tribe envisioned in terms of privileged; and, a willingness to cover expenses effective consultation. A prototype agreement to facilitate their participation in this effort. The document was developed only after NDDOT NDDOT and the FHWA desired a clearly defined had consulted with the appropriate Tribal approach to Tribal consultation that was honest representatives on each of the eight reservations. and straightforward. In addition, the FHWA The proposed PA would dramatically alter desired an approach that clearly excluded types how the NDDOT and the FHWA consulted with of projects that were not of concern to the the Tribes: now all of the parties would work consulting Tribes, thus facilitating and streamlin- together as a group. The idea to work together ing the process. They also sought an approach as a group came from the consulting Tribes, who that satisfied the Section 106 compliance issues felt that with their varying expertise they were for the FHWA and clearly met the needs of the stronger and more effective when functioning consulting Tribes so that the relationship between together. Taking a collaborative approach to the various parties would be based on mutual consultation would also reduce the demands on trust and respect. Further, all of the participating their time. The NDDOT and the FHWA encour- parties expressed a strong mutual interest in aged this approach since it supports mutually assuring that the PA would afford ongoing beneficial goals and could lead to more predict- opportunities for cross-cultural training. able outcomes. While other SDOTs and their respective The issues addressed in the PA were carefully FHWA Divisions have developed their own written and rewritten by all participants to programmatic approaches to Tribal consulta- insure that those items they believed important tion that are tailored to their own circumstanc- to document were included in the final agree- es as well as to the individual preferences of the ment. In this regard, the consulting Tribes, the Tribes with whom they must consult, this PA is NDDOT, and the FHWA all identified their unique in that representatives of the consulting primary concerns. These concerns were subse- Tribes took an active role in drafting the actual

A Case Study in Effective Tribal Consultation  “The idea of consultation between different peoples— mutual effort, rather than the end result. While non-Indian, Indian, and Native American folks—it’s a unique the agreement provides for consultation on NDDOT projects, it also facilitates a healthy opportunity to see each other. I believe that’s what this exchange of ideas among the NDDOT, FHWA, programmatic agreement does. It allows us to see each and the Tribes. This increased dialogue among other in our own light.” the parties results in the discussion of a variety of topics and controversial issues. The outcomes —Curley Youpee, Cultural Resources Department Director for the Fort Peck of these discussions need to be understood by Assiniboine and Sioux Tribes FHWA Division personnel, as well as NDDOT cultural resource personnel, since they could affect the decision-making process. agreement document, with the full support Under the terms of the final PA, the TCC of the NDDOT and the FHWA North Dakota (composed of representatives from each consult- Division. The process of working toward this ing Indian Reservation, NDDOT, and the agreement allowed for the development of FHWA) agree to meet at least twice a year to relationships of trust and respect. Sustaining discuss projects and policy with regard to NHPA these relationships is integral to a streamlined, compliance. To facilitate these discussions, the effective Tribal consultation process. NDDOT will provide a packet of information The PA is a living document that builds on summarizing upcoming projects prior to a the past yet looks to the future. As such, the PA scheduled meeting. respects Tribal sovereignty and the individual As the consultation efforts for pre-PA projects cultural identities of the consulting Tribes while like the Jamestown Bypass and U.S. Highway #2 emphasizing collaboration and mutual respect. Minot to Williston demonstrate, additional Working through a Tribal Consultation Commit- onsite consultation for certain projects may also tee (TCC), rather than on an individual Tribal be needed to help identify possible impacts or to basis, allows a clearer understanding of relevant obtain firsthand knowledge of issues relating to issues and concerns, which will lead to effective cultural concerns. Accordingly, there are PA cultural resource management and better provisions for onsite consultation that provide decisions. The TCC embodies the principles of flexible guidelines for TCC participation and the PA and looks beyond project-specific consul- encourage Tribal elders, or other individuals tation in establishing and achieving mutually identified by the TCC, who have specific knowl- determined goals. edge of the area, project, or resource to attend Although the original idea for a PA for Tribal onsite meetings. consultation did not initiate with the FHWA, the In addition to the TCC meetings, NDDOT Division Office has been very active in develop- will continue to meet with the consulting Tribes ing and implementing the agreement. Mark individually at each Committee member’s Schrader, Environmental and Right-of-Way Engi- individual office at least once per year and will neer, has represented the FHWA Division Office continue to consult with the Tribes or committee since the working group began drafting the final members who are identified at the meetings as PA, derived from the prototype PA written by contacts for further consultation in regard to a Jeani Borchert and Kent Good after the vision of specific project, resource, or issue. The NDDOT their Tribal partners became clear. Schrader will continue individual consultation with any provides the FHWA perspective that is essential Tribe that does not become a party to the PA. to informed decision-making in such a collabora- Consultation will continue as defined through tive setting. individual discussions or formal agreements. The NDDOT emphasizes that the FHWA’s In order to involve the consulting Tribes’ support and understanding is critical to the cultural resource personnel to a greater extent success of the Tribal consultation effort. The PA and at an earlier point in the planning process, should be viewed as one product of a long-term, the current Statewide Transportation Improve-

10 In Their Own Light ment Program (STIP) will be provided to the Following the PA signing ceremony in TCC. Access to the STIP will provide the Tribes’ November 28, 2006, at the North Dakota cultural resource personnel advance notification Heritage Center in Bismarck, Elgin Crows of the nature, scope, and location of future Breast, the Tribal Historic Preservation Officer, projects and will give the TCC the opportunity and the NAGPRA representative for the Three to review projects well in advance of project Affiliated Tribes, candidly described the devel- development. opment of the agreement as, “Three years of The potential for public disclosure of certain actually hammering it out and just bearing sensitive information shared during the course of down and reading word for word . . . scratching consultation is a key concern for the consulting this and throwing that and finally we come up Tribes. The PA acknowledges the need for with this document… but it’s going to be a confidentiality of certain Tribal spiritual and good piece of work for us.” cultural information and incorporates measures William Ambrose Littleghost, honored elder to insure that information that is identified as and Cultural Advisor of the Spirit Lake Dakotah sensitive will remain confidential and protected Nation placed the PA in a more historical from public disclosure upon request. context by discussing Indian and non-Indian Although the final PA was crafted during the relations: “Again, we always have to come to a course of two 2-day meetings held in Bismarck, decision . . . that we have to sign papers. But you the executed agreement represents the outcome know that since the beginning of time, when the of several years of building relationships and Europeans came until today, we’re still signing initiating dialogues. papers. In good faith and in good ways so that

A Case Study in Effective Tribal Consultation 11 we can live together in harmony like human folks—it’s a unique opportunity to see each beings.” Mr. Littleghost called for the signatories other,” Mr. Youpee stated, noting that, “I believe of the PA to have respect for each other, adding: that’s what this programmatic agreement does. “If we work together, we can make this thing It allows us to see each other in our own light. work. Like my grandfather who said ‘Grandson, This programmatic agreement will allow us to we signed peace treaties—we’re still waiting for see what has been done. What has been paved the outcome.’ Let us get to work on this so we and how to conduct ourselves in a way that has can get some results.” mutual benefit.” Conrad Fisher, Tribal Historic Preservation Officer for the Northern Cheyenne Tribe Looking to the Future provided this appraisal of the PA: “I think that if we look at any agreement, even treaties, I think Developing and executing the programmatic that they have evolved over time . . . but today we agreement are only a part of establishing and find a PA that’s probably as good as they come maintaining an effective, mutually beneficial just because we have a lot more ownership and Tribal consultation process in North Dakota. responsibility and empowerment in these type of Although the potential benefits are many, the activities.” actual implementation of the terms of the PA Additional insight regarding the importance brings additional responsibilities and challenges of the agreement to insuring timely and effective to all of the stakeholders. As Allen Radliff, consultation was provided by Curley Youpee, former North Dakota Division Administrator Cultural Resources Department Director for the remarked during the PA signing ceremony: “The Fort Peck Assiniboine and Sioux Tribes: “The hard work is just beginning. It’s up to all of us to idea of consultation between different peoples— make sure that it works as intended. We can’t non-Indian, Indian, and Native American just sit back and wait. We must show that this

12 In Their Own Light will work for us. As Mr. Littleghost mentioned “I think that if we look at any agreement, even treaties, I think we need to put our heart into it—we need to that they have evolved over time… but today we find a PA trust one another. I know we can do that.” The PA emphasizes that, “Consultation can that’s probably as good as they come just because we have a be generalized as a process of learning through lot more ownership and responsibility and empowerment in education and interaction.” This statement these type of activities.” reinforces a concern identified by all the partici- pants during the development of the PA—the —Conrad Fisher, Tribal Historic Preservation Officer for the Northern need for cross-cultural education and training that Cheyenne Tribe supports and enhances the consultation process. Under the terms of the PA, the FHWA, the NDDOT, and the consulting Tribes have agreed a manual that addresses cultural differences to commit time, provide opportunities and because these differences can be a deterrent to personnel, and seek funding for cross-training coming to an agreement or achieving consensus. related to Tribal and transportation cultural Envisioned as an educational work to help resource issues. The goals of such cross-training both Indians and non-Indians with cultural include improving of relationships, a greater heritage issues, the manual was developed by understanding of cultures and perspectives, and Kent Good with significant input from Tribal the building of trust. representatives. The manual is intended to In addition to addressing project specific and facilitate an exchange of knowledge without planning issues, the TCC meetings include judgment and to accommodate the development thoughtful discussions of certain topics that are of a framework for consultation. Because the broader in scope but have a direct bearing on manual is a tool to be used to expedite consulta- how successful consultation will be in terms of tion, it is designed to incorporate modifications addressing Tribal concerns as well as meeting as needed. Although intended for the signatories mutually determined goals. These topical of the PA, it is hoped that the manual, or certain discussions have led to the identification of elements of the manual, could be adapted to the prioritized training needs that focus on heighten- consultation needs of others. ing cultural awareness as well as regulatory and compliance matters. Lessons Learned Examples of prioritized training that are being considered (as requested by the consulting Tribes) The development and implementation of the PA include training for Tribal monitors and cultural exemplify several effective Tribal consultation sensitivity training for NDDOT’s archeological practices that previously have been identified in contractors. Whereas Tribal concerns regarding major studies, including Tribal Consultation: the lack of systematic use of Tribal monitors in Best Practices in Historic Preservation (NATH- the context of cultural surveys and perceived lack PO 2005). First, the PA is sensitive to Tribal of cultural sensitivity on the part of archeologists concerns and recognizes the inherent rights of were raised and discussed prior to the develop- the consulting Tribes to retain and preserve those ment the PA, the timely initiation of training in places that they value; second, it affirms the joint these areas is a critical step towards fully imple- commitment of the NDDOT, the FHWA, and menting the agreement. In keeping with the spirit the consulting Tribes to establish and sustain a of cross-cultural collaboration, the proposed relationship of mutual trust and respect through training would be jointly developed and jointly open communication and collaborative problem- delivered by NDDOT and the consulting Tribes. solving; third, the PA encourages early involve- Another important initiative tied to the ment of the consulting Tribes in project planning implementation of the PA is the NDDOT’s by providing them with the opportunity to forthcoming Cultural Heritage Manual. All of review projects well in advance of project the signatories to the PA appreciate the need for development.

A Case Study in Effective Tribal Consultation 13 In the context of the current study, however, on to that nation integrity. We are sovereign it is important that individuals involved in the within a nation—that’s who we are.” ongoing collaborative process of developing and implementing the PA share their insights regard- Recognize that Tribal consultation goes far ing the best practices in Tribal consultation beyond merely complying with the law. The exemplified by this PA. desire for Tribal input must be genuine, and once Tribal input has been obtained, it must be Approach Tribal consultation efforts with a acknowledged and acted upon. In this regard, “good heart.” The importance of having a Robert Christensen (NDDOT) has commented: “good heart” when engaging in Tribal consulta- “Start with the idea that the goal is to ‘do the tion underlies all the aspects of the PA and right thing.’” Christensen also cautions: “Ask related initiatives. According to Jeani Borchert questions and begin a dialogue, but then LISTEN. (NDDOT): “If you go in with a good heart, the Keep an open mind where everything is possible, process will develop appropriately for all those there just may be some ‘challenges.’” involved. So ‘best practices’ is really having the ‘heart’ to consult.” Mark Schrader (FHWA) Recognize that the relationship between Indians adds: “Consultation is more than listening and and non-Indians has been forged by the painful seeing, it also involves feeling. In order to feel, legacies of the past. An often unsettling and you need to use your heart.” uncomfortable concept for non-Indians to grasp is that contemporary Native Americans experi- Acknowledge and respect Tribal sovereignty and ence pain and a profound sense of loss very the importance of government-to-government acutely. However, in order to work together at relationships. Curley Youpee (Fort Peck Assini- any meaningful level, this is a fact that must be boine and Sioux Tribes) emphasizes that Tribal openly acknowledged and respected by non- consultation must truly be consultation among Indian participants throughout consultation. sovereign nations: “The concept of consultation Curley Youpee’s powerful words reinforce the between nations and nations . . . understanding importance of respecting cultural identity and that Tribes are nations within nations. We hold openly acknowledging the emotional aspects of

14 In Their Own Light consultation: “See us, see who we are. We pain. We have pain and grief because our burial grounds are going to be disrupted or disturbed. There’s pain there. We are human. The program- matic agreement brings that as well. It allows Indian people to be human.”

Be willing to commit time and resources. Another key to effective consultation is taking the time to both build and sustain relationships among the parties. Understanding the long-term, temporal elements of the process is vital. The participants in PA efforts repeatedly stress the vital importance of working together. As Conrad Fisher (Northern Cheyenne) commented: “One of the things that is common knowledge on the Northern Cheyenne that we say—I’d always hear it as a child from my grandmother—is [Cheyenne expression]. What that means is ‘nothing is hard if we work together.’ It’s a simple message but it has a powerful meaning behind it. And I think that’s a good way to look at this PA.”

Identify Tribal needs, including financial con- straints that would preclude active and ongoing developing a PA for the sake of some type of participation in the consultation process. Under synergy, bringing about peace amongst our- the terms of the PA, the NDDOT is committed selves—that’s not always an easy task.” to host the TCC meetings and cover the travel expenses for up to two representatives from each The North Dakota participating reservation. This long-term com- Tribal Consultation mitment fosters continued involvement of Tribal PA in Retrospect representatives who might not otherwise be able to participate. As the Section 106 Programmatic Agreement for Tribal Consultation in North Dakota demon- Be aware of cultural differences, and be cogni- strates, rather than viewing cultural differences zant that your own way is not the “only way,” as impediments that must be overcome to reach and it may not be the “best way.” The signato- consensus, effective Tribal consultation practices ries to the PA agree that not understanding must be grounded in appreciation of, and respect cultural differences can be a roadblock to for, those differences. In this regard, the collab- effective consultation and can lead to impasses. orative approach to Tribal consultation taken As Curley Youpee (Fort Peck Assiniboine and by the FHWA, the NDDOT, and the consulting Sioux Tribes) has observed: “Now, much of this Tribes is very much in keeping with the Depart- cultural, this Native American culture, has little ment of Transportation (DOT) Order 5301.1, to do with non-Indians, yet the spirit of that Department of Transportation Programs, culture is what brings us strength and continues Policies, and Procedures Affecting American our life, and struggle for peace and harmony Indians, Alaska Natives, and Tribes (November amongst the non-Indians. And so, in developing 11, 1999), which identifies the responsibility of a PA, in coming together for consultation, in each DOT component in carrying out policies,

A Case Study in Effective Tribal Consultation 15 programs, and activities affecting American ever, if avoidance is impossible or impractical— Indians, Alaska Natives, and Tribes to insure given other concerns of equal importance—the that an effective mechanism is in place to achieve NDDOT and the FHWA are committed to several goals. Among those goals is to adapt working with the Tribes for appropriate and processes to recognize American Indian, Alaska respectful resolution of any unavoidable effects. Native, and Tribal culture and traditions. Perhaps more importantly, the PA looks Focusing on program-wide approaches, this beyond project-specific consultation and pro- PA represents a joint commitment to establishing vides a solid framework for establishing and a relationship of mutual trust and respect and achieving common goals. Foremost among these recognizing the inherent rights of Tribes to retain goals is building and maintaining relationships and preserve those places that they value. The through open communication in a culturally PA establishes a jointly-developed protocol for sensitive setting. consultation with the Tribes regarding highway This agreement can serve as a model for other projects, and excludes certain types of transpor- FHWA Divisions and SDOTs seeking to consult tation projects with limited or no potential to with multiple Tribes in a proactive, culturally affect cultural resources important to the Tribes sensitive and collaborative manner. As this study from the consultation process. In order to help of the long-term Tribal consultation efforts in make the Section 106 process more predictable, North Dakota illustrates, the steps involved in the PA also provides for specific timeframes and developing and implementing a programmatic responsibilities for the consulting parties to agreement of this nature should be viewed as complete the consultation process. part of a continuum that begins by building The agreement places emphasis on jointly relationships and sharing knowledge and then developed avoidance measures for important progresses to ongoing collaboration in an cultural resources as the primary option. How- atmosphere of mutual respect and trust.

For information concerning the North Dakota Section 106 PA for Tribal consultation, please contact: Mark Schrader Jeani Borchert FHWA North Dakota Division Cultural Resource Section 701-250-4343 ext. 111 North Dakota Department of Transportation [email protected] 701-328-4378 [email protected]

For information regarding training and technical assistance related to Tribal consultation issues offered by the FHWA Resource Center, please contact: Stephanie Stoermer David Grachen FHWA Resource Center FHWA Resource Center 720-963-3218 404-562-3668 [email protected] [email protected]

Additional Tribal Consultation Resources Federal Highway Administration (FHWA). Section 106 Tribal Consultation Q & A’s. http://www.fhwa.dot.gov/hep/tribaltrans/tcqa.htm The Advisory Council on Historic Preservation (ACHP). The ACHP Native American Program: Guidance for Federal Agencies. http://www.achp.gov/nap.html National Association of Tribal Historic Preservation Officers (NATHPO). Best Practices in Historic Preservation: Tribal Consultation. (2005). http://www.nathpo.org/publications.html AASHTO Center for Environmental Excellence. Tribal Consultation. http://environment.transportation.org/environmental_issues/tribal_consult/

16 In Their Own Light ACKNOWLEDGEMENTS

Tribal Consultation Committee Elgin Crows Breast Byron Olson Cultural Preservation Program Director Archeologist Three Affiliated Tribes (Mandan, Hidatsa, Tribal Historic Preservation Office and Arikara Nation) Standing Rock Sioux Tribe New Town, North Dakota Fort Yates, North Dakota Calvin Grinnell Conrad Fisher Cultural Resource Specialist Tribal Historic Preservation Officer Three Affiliated Tribes (Mandan, Hidatsa, Northern Cheyenne Tribe Arikara Nation) Lame Deer, Montana New Town, North Dakota George Reed, Jr. Brady Paul Grant Secretary of Cultural Education Tribal Historic Preservation Officer, Crow Tribe (Apsáalooke Nation) Natural Resources Director Crow Agency, Montana Turtle Mountain Band of Chippewa Indians Edith Reed Belcourt, North Dakota Crow Tribe (Apsáalooke Nation) William Ambrose Littleghost Crow Agency, Montana Cultural Advisor Curley Youpee Spirit Lake Nation Director Cultural Resource Department /NAGPRA Coordi- Fort Totten, North Dakota nator Aileen Littleghost Fort Peck Assiniboine and Sioux Tribes Spirit Lake Nation Poplar, Montana Fort Totten, North Dakota Jeani Borchert Pam Halverson Cultural Resource Specialist Tribal Historic Preservation Officer NDDOT Lower Sioux Indian Community Bismarck, North Dakota Morton, Minnesota Mark Schrader Dianne Desrosiers Environmental and Right-of-Way Engineer Anthropologist FHWA-North Dakota Division Tribal Historic Preservation Office Bismarck, North Dakota Sisseton-Wahpeton Oyate Sisseton, South Dakota Other Contributors James Whitted Kent Good Tribal Historic Preservation Office Kent Good & Associates Sisseton-Wahpeton Oyate Helena, Montana Sisseton, South Dakota Robert Christensen Dennis Gill Cultural Resource Section Leader Sisseton-Wahpeton Oyate NDDOT Waubay, South Dakota Bismarck, North Dakota Tim Mentz Sr. Allen Radliff Tribal Historic Preservation Officer Division Administrator Standing Rock Sioux Tribe FHWA Wisconsin Division Fort Yates, North Dakota

North Dakota Department of Transportation Federal Highway Administration, North Dakota Division