U.S. Department of Transportation 

Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes (DOT 5301.1 ) [PDF 33kb]. This document presents the department’s policy and responsibility regarding programs affecting Indian tribes.

 Use of Federal Funds for Tribal Reimbursement

Interagency Guidance: Transportation Funding for Federal Agency Coordination Associated with Environmental Streamlining Activities, IV. Reimbursement for Tribal Coordination. This guidance discusses the circumstances under which FHWA may participate in payments made by a state DOT for tribal consultation and related services. FHWA’s guidance states that payment is appropriate in certain cases.

Legal Opinion Re: Federal-Aid Participation in Payments for Tribal Services Under the National Historic Preservation Act.

Fees in the Section 106 Review Process (Advisory Council).

The National Congress of American Indians (NCAI) passed Resolution #SD-02-019 [PDF 101kb], on November 10-15, 2002, calling upon the Advisory Council on Historic Preservation to review how to address the costs incurred by Indian tribes and Native Hawaiian organizations during consultation, and to develop a formal policy on compensation to tribes and Native Hawaiian organizations for consultation and participation in the Section 106 process.

Advisory Council on Historic Preservation (ACHP)

ACHP Policy Statement Regarding ACHP’s Relationships with Indian Tribes. “This policy establishes the framework by which the ACHP integrates the concepts of tribal sovereignty, government-to-government relations, trust responsibilities, tribal consultation, and respect for tribal religious and cultural values into its administration of the Section 106 process and its other activities.”

ACHP Policy Statement Regarding Treatment of Burial Sites, Human Remains, and Funerary Objects. (February 2007)

ACHP Web-based Section 106 Archeology Guidance (June 2007)

U.S. Department of Interior (DOI)

Bureau of Indian Affairs: Government-to-Government Consultation Policy. Pursuant to the President’s Executive Order 13175 of November 6, 2000, and in consultation with tribes, the DOI issued a government-to-government consultation policy that provides step-by-step procedures for consultation.

H-8160-1- General Procedural Guidance for Native American Consultation.[PDF 462kb] This guidance details what the Bureau of Land Management considers to be a reasonable and good faith effort for obtaining appropriate tribal input in the project and program decision-making process. 

U.S. Department of Defense  

Fort Bragg’s Standard Operating Procedure for Native American Consultation [PDF 30kb]. This document outlines the minimum procedures that Fort Bragg uses to conduct tribal consultation, and includes Fort Bragg’s statement on public disclosure and confidentiality in relation to tribal issues.

Department of Defense American Indian and Alaska Native Policy October 20, 1998. This policy governs how all DoD agencies meet their responsibilities under Federal preservation law and regulation to consult with tribes.  The policy covers trust responsibilities, government-to-government relations, consultation, and natural and cultural resources protection. (NOTE:  If you cannot open this link because of a security violation, type “Department of Defense American Indian and Alaska Native Policy” into your browser.

[back to top]

Iowa Department of Transportation

Iowa Tribal Consultation Process: Initiatives and Recommendations. The FHWA and the Iowa Department of Transportation initiated activities to establish an acceptable consultation process with tribes having a current and/or historic interest in Iowa lands. View a report on these activities [PDF 140kb] or View an article on these activities .

The Iowa DOT, FHWA, and the Iowa State Historic Preservation Officer (SHPO) have developed a Programmatic Agreement (PA) for implementing Section 106 in the state. The PA has a section on tribal consultation. The PA also includes a Tribal Notification Form to be used to contact tribes early in the project development process.

Iowa FHWA and DOT have also developed a programmatic memorandum of understanding template that establishes the parameters of tribal notification and consultation on projects in the state.  This programmatic MOU is used as an addendum to the above mentioned PA.  The purpose of these agreements is to focus tribal consultation on those undertakings that are truly of concern to tribes. The MOU template also includes an appendix (A) which outlines the tribal consultation process to be used by the Section 106 parties. For a copy of the MOU and the Appendix A, contact Mark Kerper, Iowa DOT, at: mark.kerper@dot.iowa.gov.

Kansas Department of Transportation

The Kansas Department of Transportation (KDOT) has developed new statewide Native American consultation procedures, in collaboration with the four tribes that have tribal lands in Kansas. The FHWA also contacted 31 tribes that have expressed an interest in being consulted about transportation projects in Kansas.

Louisiana Department of Transportation and Development

Programmatic Agreement with the Caddo Nation of Oklahoma [PDF 410kb]. The Louisiana Department of Transportation and Development has a programmatic agreement with the Caddo Nation of Oklahoma on how and when the Department is to consult with the tribe.

Minnesota Department of Transportation

Government-to-Government Transportation Accord [PDF 64kb]. This agreement stipulates a commitment by eleven tribes, MnDOT, and the FHWA to establish a government-to-government partnership on transportation matters. This partnership is intended to demonstrate mutual respect for each other; enhance, improve, and foster cooperation on transportation projects; and facilitate respectful resolution of inter-governmental differences with regard to transportation issues.

MnDOT and the FHWA have executed two Section 106 programmatic agreements with tribes, one with the Lower Sioux Indian Community and the other with the Bois Forte Band of Chippewa Indians. The PAs include stipulations on the specific counties that are of concern to the tribes, the process for tribal consultation in relation to determinations of effect and adverse effect, how to deal with new discoveries during construction, procedures for treatment of human remains, etc.

Pennsylvania Department of Transportation

PennDOT has developed interim guidelines for tribal consultation [PDF 67kb].   Fourteen Federally recognized tribes have been identified as having an interest in Pennsylvania.  Developed before the Intertribal summit in 2003 (see Case Study), the Interim guidelines establish a protocol for consultation and include standardized communication and response forms to streamline the consultation process.

Rhode Island Department of Transportation

The FHWA, the Rhode Island DOT, the Narragansett Tribal Historic Preservation Officer, and the Advisory Council on Historic Preservation executed a programmatic agreement that applies to transportation undertakings that have "no effect" on historic properties.

The Rhode Island DOT, the FHWA and the Narragansett Indian Tribe have also executed a Memorandum of Understanding [PDF 233kb] that establishes a new consultation process.  The focus of this MOU is on tribal monitoring of DOT projects.

Texas Department of Transportation

TxDOT, FHWA, and the Tonkawa Tribe of Oklahoma have developed a Programmatic Agreement [PDF 44kb] establishing a consultation process. Developed in 2002, this programmatic agreement will streamline the Section 106 consultation process with the Tonkawa Tribe.  TxDOT estimates that it currently consults with the Tonkawa Tribe on nearly all of its approximately 1,000 projects each year; the new Tribal PA will foster more meaningful consultation as the Tonkawa Tribe can select the projects where they may actually have a concern.

Since the Tonkawa PA was signed, TxDOT has entered into identical agreements with 14 separate tribes. These PAs stipulate when TxDOT is to consult with the tribe and which types of projects require consultation. Some tribes have indicated that they want to be consulted on all projects in the state, while other tribes are only interested in projects within a few counties. TxDOT makes at point of meeting with at least one tribe every year to discuss Section 106 and NAGPRA related issues.

[back to top]

[back to top]

Pueblo of Sandia v. United States Forest Service, 50 F.3d 856 (10th Cir. 1995)
The U. S. Court of Appeals for the Tenth Circuit ruled that the U.S. Forest Service violated Section 106 of the National Historic Preservation Act by failing to make a “reasonable and good faith effort” in identifying traditional cultural properties (TCPs) before the approval of a visitors management plan for Las Huertas Canyon in the Cibola National Forest, New Mexico. The court found that the agency did not conduct a reasonable and good faith effort to identify resources, therefore they could not make a proper finding as to whether the affected area included TCPs.  Mailing form letters to the tribe requesting information about sacred sites was deemed to be an inadequate effort when the agency should have known that tribes are reluctant to divulge specific information about cultural and religious sites.  The court found that the Forest Service withheld information from the State Historic Preservation Office (SHPO) in seeking their concurrence with a finding of no adverse effect. Because the U.S. Forest Service failed to provide information to the SHPO about traditional cultural properties existing in the canyon, and they did not take the tribe’s secrecy/confidentiality concerns seriously, the court ruled that the U.S. Forest Service actions did not constitute a reasonable and good faith effort.

[back to top]

Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999)
The plaintiffs-appellants, the Muckleshoot Indian Tribe, et al. (Muckleshoot Tribe), argued that the U.S. Forest Service violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act during a land exchange with Weyerhauser Company. On appeal, the tribe argued that the U.S. Forest Service violated the NHPA by failing to “consult adequately with the tribe regarding the identification of traditional cultural properties.” The circuit court found that the U.S. Forest Service had adequately consulted with the tribe.

[back to top]

Advisory Council on Historic Preservation

Consulting with Indian Tribes in the Section 106 Process. This guidance from the Advisory Council on Historic Preservation clarifies the requirements for federal agencies to consult with Indian tribes, as outlined in 36 CFR 800.  This document explains when Federal agencies must consult and what issues must be addressed as part of this consultation.

Federal Highway Administration

Section 106 Tribal Consultation Q & A's. The Federal Highway Administration (FHWA) has a website that provides brief summary statements on issues involving tribal consultation, including a discussion on what constitutes appropriate consultation methods.

The FHWA Native American Coordination staff provides guidance and technical assistance to Federally-recognized tribes on a government-to-government basis.

The Indian Reservation Roads Program defines procedures and guidelines to be used by the FHWA, Bureau of Indian Affairs (BIA), and Indian tribal governments for roads on reservation lands.  This document discusses the role of tribes in the transportation planning process in terms of what needs to occur to ensure tribal participation, how tribes are part of the planning process, and how tribal sovereignty can be maintained.

Environmental Protection Agency

Guide on Consultation and Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal members in Environmental Decision Making [PDF 1.17mb] (from the National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee, a Federal advisory committee to the U.S. Environmental Protection Agency). The guide provides recommendations and information on what constitutes effective consultation, what consultation means, and methods for constructive communication with tribes.

Department of Energy

A Guide for DOE Employees Working with Indian Tribal Nations [PDF 563kb] (December 2000).  This guide is intended to help Department of Energy (DOE) employees and contractors build an effective working relationship with tribes. Included are topics on etiquette, how tribes make decisions, points of contact, existing agreements, etc.

National Park Service

Guidelines for Evaluating and Documenting Traditional Cultural Properties, by Patricia L. Parker and Thomas F. King, U.S. Department of the Interior, National Park Service, National Register Bulletin 38. This bulletin provides definitions of what constitutes a traditional cultural property, includes examples of property types, and presents guidelines for identifying and evaluating traditional cultural properties for inclusion on the National Register of Historic Places.

State Transportation Agencies

Pennsylvania Department of Transportation: Interim Guidance for Consulting with Indian Tribes [PDF 67kb].  The Pennsylvania DOT has developed a set of interim guidelines on consulting with tribes for Section 106 undertakings. Pennsylvania has no tribal reservations and yet 14 Native American tribes have historical connections to land within the state’s borders.  The guidelines provide state and Federal agency personnel with the means to make a reasonable and good faith efforts to consult with the tribes.

Washington State DOT: Model Consultation Process for Environmental Review (July 2008). WSDOT has issued a model process for project teams to use on federal-aid transportation projects when the Federal Highway Administration (FHWA) is the lead federal agency. FHWA and WSDOT must comply with a number of federal, state and agency consultation requirements. The model process aims to incorporate these requirements into one process for a more thorough and holistic review.

Transportation Research Board

Consultation with American Indian Tribal Governments and the Transportation Process, [PDF 1.19mb] by Janet E. Spivey (New Mexico Department of Transportation) in Preservation Notes, Transportation Research Board, Committee on Archaeology and Historic Preservation, November 2000. This article presents a discussion on the principles and meaning of tribal consultation.

Transportation Circular EC039. Conference on Transportation Improvements [PDF 6.62mb NOTE:  large document; will be slow to download]. Experiences among Tribal, Local, State, and Federal Governments, September 2002. This TRB Circular reports on the proceedings of a conference held in Albuquerque, New Mexico, in the fall of 2000. The conference’s goal was to report on and examine present best practices in effective government-to-government relationships. The case studies discussed at the conference demonstrate the value of including tribes in the planning phases of new projects. Panel presentations provided case studies about agency and tribal experiences in Alaska, Arizona, Nevada, New Mexico, and Washington. The section entitled “Workshop Sessions,” beginning on page 77 of the Circular, outlines key issues associated with tribal consultation.

Other Organizations

Twenty Suggestions for Federal Agencies Consulting with Tribes [PDF 36kb], by Joe Watkins. From SRI Foundation’s workshop Principles of Tribal Consultation, Dr. Watkins provides 20 helpful suggestions for agency officials and land managers consulting with tribal representatives.  Guidance includes how to greet tribal people, establishing seating arrangements at meetings, allowing tribal members to open meetings with a prayer, and understanding tribal leadership roles.

Ten Suggestions for Tribes Consulting with Agency Land Managers [PDF 30kb], by Joe Watkins, from SRI Foundation’s workshop Principles of Tribal Consultation. Dr. Watkins provides ten suggestions for tribal representatives consulting and interacting with agency officials. This guidance includes understanding government-to-government relationships, keeping a written record of the consultation process, requesting copies of notes or meeting minutes from agency officials, and how to achieve a more effective and beneficial working relationship among all parties.

Minimum Levels of Contact [PDF 455kb]. Updated and modified by Joe Watkins, adapted from “Federal Consultation with Native Americans,” by C. Timothy McKeown, in Common Ground 2(2), 1997. This table outlines the minimum levels of consultation required by statute in terms of different types of undertakings.

[back to top]

National Association of Tribal Historic Preservation Officers

Best Practices Study on Tribal Consultation in Historic Preservation [PDF 3.67mb]. The National Association of Tribal Historic Preservation Officers, in collaboration with the Advisory Council on Historic Preservation and with funding by the National Park Service, has published a study that examines best practices in tribal consultation for Section 106 undertakings.  The study provides Federal agencies and tribes with guidance on how to engage in successful consultations. All Federal Preservation Officers and Federally recognized Tribes were contacted as part of a nationwide survey.  The study’s results affirm the value and importance of early consultation. Tribes define success differently than their Federal agency partners, however, viewing the establishment of good relations as a more important measure of success than coming to an agreement on resolving adverse effects or completion of a project.

Navajo Nation

“Native American Consultation: Some Guidelines” [PDF 2.25mb] by Nina Swidler (Navajo Nation Historic Preservation Division), in Preservation Notes, Transportation Research Board, Committee on Archaeology and Historic Preservation, November 2000. This article presents both guidelines for tribal consultation and information on how to identify appropriate points of contact within tribes.

[back to top]

The Navajo Nation Model: Tribal Consultation Under the National Historic Preservation Act, [PDF 125kb] by Alan Downer, in CRM Magazine, Volume 23 (No. 9). This article presents the Navajo Nation Historic Preservation Division’s views on tribal consultation, its efforts to consult and communicate with other Indian tribes, and its development of a programmatic approach to consultation.

Two Views of the World, [PDF 177kb] by Sally Thompson Greiser and T. Weber Greiser, in CRM Traditional Cultural Properties, Volume 16, 1993. This article examines tribal consultation in the context of understanding political, linguistic, cultural and religious differences between indigenous peoples and agency goals and responsibilities.

Common Ground: Speaking Nation to Nation, Summer/Fall 1997, vol. 2(3/4). This volume of the National Park Service’s Common Ground contains many articles about tribal consultation and historic preservation.  Articles examine the meaning of consultation and provide examples of best practices in tribal consultation. This volume of Common Ground can be accessed at http://www.cr.nps.gov/aad/cg/vol2_num3-4/index.htm.

Native Americans and Archaeologists: Stepping Stones to Common Ground [PDF 4.59mb], edited by Nina Swidler, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer, 1997, Walnut Creek, CA, Altamira Press. This volume is the result of several sessions organized at the Society for American Archaeology’s 1996 annual meeting. The volume contains a section with seven articles on tribal consultation. One article from this book, “The Seeds of Common Ground: Experimentations in Consultation,” by David G. Rice, is a particularly useful guide for improving tribal consultation. The PDF of this article is provided in the link above with permission by the publisher and author. The complete book is available from Altamira Press (www.altamirapress.com).

American Indians and the Nevada Test Site: A Model of Research and Consultation, by R. Stoffle, M. Zedeno and D. Halmo, 2001, U.S. Government Printing Office, Washington, D. C.  This volume describes the Department of Energy’s (DOE’s) tribal consultation efforts associated with the mitigation of historic properties on the Nevada Test Site. Consultation involved 16 Indian tribes, three ethnic organizations, and one pan-Indian organization. Eight other tribes were consulted on a project-by-project basis.  Innovative aspects of this effort included the use of Indian-authored text in reports and environmental impact statements (including this volume) and the establishment of a DOE agency-wide policy on best consultation practices based on the work at the Nevada Test site.

Significance and Traditional Cultural Properties, [PDF 529kb] by Alan S. Downer, in Transportation Research, Number E-C055, August 2003, National Forum on Assessing Historic Significance for Transportation Programs, May 23-25, 1999, Washington, D.C. Transportation Research Board of the National Academies.  In this article, the author discusses what constitutes a reasonable and good faith effort for identifying traditional cultural properties, the importance of having an open mind and listening to and talking with traditional experts.

Places That Count: Traditional Cultural Properties in Cultural Resource Management, by Thomas F. King, September 2003, Altamira Press, Walnut Creek, CA, This book offers cultural resource managers practical information on the identification, documentation, and management of traditional cultural properties through tribal consultation.

[back to top]