Preparing Successful No-Effect and No-Adverse-Effect Section 106 Determinations: A Handbook for Transportation Cultural Resource Practitioners (2025)
Chapter: 6 Consulting and Engaging Tribes
CHAPTER 6
Consulting and Engaging Tribes
Several publications have addressed effective tribal consultation and engagement in the context of transportation projects and programs. Two of these are the final report for NCHRP Project 25-25/Task 79, “Successful Practices for Effective Tribal Consultation” (Louis Berger Group 2013) and NCHRP Web-Only Document 281: Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources (Luhman and Klein 2020). Several of the practices discussed in these two NCHRP studies are reflected in the responses to the online survey and interviews for NCHRP 25-65. The online survey and interviews therefore serve as confirmation of the value and importance of these practices, which can be applied to consultation on determinations of effect. These practices fall under the following topics and themes:
- Conducting early and continuous consultation,
- Customizing consultation and engagement to each individual tribe,
- Recognizing and using tribal expertise, and
- Building relationships and trust outside the project process.
Conducting Early and Continuous Consultation
Tribes responding to the online survey stated that one of the best ways to make well-reasoned and defensible effects determinations is to engage tribes early in the Section 106 process, and, as one respondent noted, “This allows time for tribes to prepare information and, should the need arise, to communicate internally to all the departments and individuals involved in the process.” In addition, state DOT and SHPO respondents repeatedly emphasized that early and respectful consultation with tribes is key.
Early consultation is especially critical when a project has the potential to affect archaeological sites of value to tribes. Agency respondents noted that tribes want state DOTs to avoid archaeological sites and that, if a site can be avoided, tribes will readily agree to a determination of No Effect; conversely, tribes are reluctant to agree with a determination of No Adverse Effect if there are any impacts to these sites. Because avoidance is the solution preferred by most tribes, it is essential to know the locations of archaeological sites early in the process so that it will not be necessary to make design changes late in the project development process.
Early consultation can also identify tribal concerns on direct and indirect effects on places of religious and cultural significance to tribes, as avoiding any effects on these places is the desired and generally the sole outcome for tribes. Agency respondents noted that tribes are becoming much more concerned about visual impacts, such as from lighting or new project elements affecting the viewshed associated with these places of religious and cultural significance. One state DOT respondent noted the agency had to consider the effects of modifying a sharp roadway
curve to address safety concerns, as the proposed action would result in a large visible scar in a mountain range that was a place of religious and cultural significance to tribes.
Some state DOTs have developed tribal notification and consultation forms that help tribes in their consultation and engagement with the state. The Iowa DOT notes, in its Office of Location and Environment [OLE] Manual, that the state DOT’s
Cultural Resources Section staff and consultants strive to be sensitive to Native American Indian tribes’ cultural traditions. Deadlines and communication styles can be very different among the various governmental agencies and tribes. Although FHWA has delegated responsibility for initial contact to OLE, the tribe always has the option of working directly with the federal agency because of their status as a sovereign nation and their right to government-to-government communication.
The Cultural Resources Section has developed a Tribal Notification Form to be used with all tribal contacts. The form is a self-mailer, designed to make the notification and information gathering process as simple as possible, and to encourage tribal response. (Iowa DOT 2009)
This notification form includes places for information on effects findings.
The Wisconsin DOT (WisDOT) developed a Tribal Historic Preservation Review Worksheet that project managers send to tribes according to their designated geographic areas of interest. Sending the worksheet is required for all environmental assessments and EISs and for projects on tribal lands, regardless of the class of NEPA action. Through the worksheet, THPOs or designated tribal representatives work with the state DOT to identify historic properties in a project area, assist with evaluations, or provide recommendations regarding treatment of historic properties. If the tribe wishes to participate in consultation, THPOs or designated tribal representatives send back the worksheet, with any supplementary documentation, to the Wisconsin DOT project manager.
Additional Information and Resources
Links to the Iowa DOT’s Tribal Notification Form and WisDOT’s Tribal Historic Preservation Review Worksheet are provided in Appendix E of the conduct of research report for NCHRP 25-65, which is available on the National Academies Press website (nap.nationalacademies.org) by searching for NCHRP Web-Only Document 412: Creating a Handbook for Successful No-Effect and No-Adverse-Effect Section 106 Determinations.
Customizing Consultation and Engagement to Each Individual Tribe
State DOTs and SHPOs noted that the nature of tribal engagement depends on the specific tribe. Each tribe has its own approach and protocols for Section 106 consultation. ODOT serves as an example of customizing consultation to meet the needs and preferences of each tribe. ODOT’s online documentation system has a tribal consultation feature as one of the many tools the state DOT developed to aid in consultation and conversations about projects. As the ODOT staff archaeologist and tribal liaison notes, “One of the first things we learned . . . was that a one-size-fits-all approach to consultation is not effective . . . and can be somewhat insulting. Once we realized this, we were left with the challenge of finding ways to meet the various needs and preferences of each tribe.”
The EnviroNet system is an online repository for project information (e.g., PDFs of emails, plans, maps, reports). To meet the challenge of providing for each tribe’s needs and preferences, this online system was enhanced to allow tribes to customize a profile and receive notifications and project information based on their preferences established in that profile. The system also provides tribes the opportunity to enter comments and upload PDF response letters to the project file. Through EnviroNet, the state DOT asks for concurrence on effects findings and for tribes to share questions or concerns. ODOT has also adopted a more collaborative approach to project
review timelines, one that understands and is sensitive to the time constraints and workload of tribal offices.
Not all tribes use EnviroNet, and no tribe uses it the same way. For each tribe not in EnviroNet (those choosing not to receive project notifications through the system), ODOT coordinates individually on project information and Section 106 determinations, either through email or other electronic communication or by mail. Tailored consultation is the goal, so the state DOT has customized its consultation by making sure it recognizes each tribe’s preferences regarding geographic area (ancestral/historical areas of Ohio), types of projects, and at what point in the process a tribe wishes to be notified. All tribes, whether notified via EnviroNet or by email or mail, are provided Section 106 determinations and findings, locational mapping, field review summaries (e.g., disturbance assessments, archaeological survey reports) and other available pertinent information (e.g., preliminary project plans, aerial photographs).
Recognizing and Using Tribal Expertise
NCHRP Web-Only Document 281: Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources notes that consideration of tribal expertise informs and enhances the tribal consultation process (Luhman and Klein 2020). The study provides best practices where tribes are
partners in the project review process, incorporating unique tribal expertise and perspectives into the identification of historic properties (including identification of areas of potential effect, defining the level of effort to identify historic properties, and evaluating National Register of Historic Places eligibility), the assessment of effects (including making findings of no historic properties affected, no Adverse Effect, and Adverse Effect), and the resolution of Adverse Effects. . . . When done appropriately and successfully, consideration of tribal expertise results in improved project outcomes for the agencies by avoiding costly delays and conflicts. From a tribal perspective, consideration of their expertise demonstrates that the agency is listening to the tribes and values their contributions and participation. In addition, working with tribes in this way improves trust and builds stronger relationships, which in turn benefits the goals and objectives of both parties. (Luhman and Klein 2020)
The Cultural Resource Preservation section of WisDOT’s Facilities Development Manual provides an example of the consideration of tribal expertise in Section 106 decision-making. In this section of the manual, which includes a discussion on qualifications, the state DOT
recognizes that Indian Tribes and traditional religious leaders have unique expertise regarding the places of traditional religious and cultural importance to the Tribes. Indian Tribes and traditional religious leaders are the best and most reliable, often the sole, source of information about such places. The knowledge and expertise of ethnographers, archaeologists, or other cultural professionals, in-depth literature reviews, etc., are no substitute for the direct expertise of the Tribe and the Tribe’s traditional religious leaders. (WisDOT n.d.)
Luhman and Klein (2020) identify several state DOTs that enhance the capacity of tribes to contribute their expertise to project development by compensating tribes for their participation in the same way a state agency would pay a consultant. These financially compensated activities might include investigations to identify places of religious and cultural significance (including consultation with elders and other experts), evaluating the National Register eligibility of these places, and identifying measures to avoid, minimize, and mitigate Adverse Effects on these places.
Building Relationships and Trust Outside the Project Process
Some states have regular meetings between tribal leaders and staff from the SHPO and the state DOT to discuss and improve tribal consultation protocols and procedures and to build relationships and trust outside the project-specific review process. “The big picture,” said one interviewee, “is to focus on the relationship.” And as one respondent noted, “Building lasting
personal relationships has been the best and almost foolproof way of preventing problems with the determination process. Actually, meeting and interacting in non–Section 106 settings is the best way for Section 106 to succeed.”
Case Study: Wisconsin Tribal Affairs Program Guidance
Description: WisDOT promotes and enhances government-to-government relationships between Wisconsin’s 11 federally recognized tribal governments and the state through the work of a dedicated tribal affairs program. The program serves the entire DOT and consists of a program manager, project manager, and five regional tribal liaisons.
Tribal Notification (Cultural): In fulfillment of Section 106 and state requirements to notify consulting parties, including Native American tribes, of a project using federal/state funding or permitting, WisDOT sends all project notification to tribes electronically. All notification letters follow guidance with suggested language for emails developed by the DOT (WisDOT 2023).
The Iowa DOT, for example, has held summits with its tribal partners since 2001. At the 2022 summit, tribal officials, transportation officials, and agency partners met to discuss various topics of interest related to consultation under NHPA as well as Iowa preservation laws. These summits serve as a platform for these groups to discuss and develop effective project consultation, as one of the goals of consultation is to properly and respectfully document and reduce the impacts to places of value to tribes. As another example, the Alabama FHWA Division Office holds an annual consultation meeting with tribes. The division office, Alabama DOT representatives, and representatives from the tribes attend the annual meetings, which have been held alternately in either the state or at a tribal government location outside the state. At these meetings, topics include activities from the previous year, anticipated projects for the next year, and discussions on how to improve the communication process and relationships. An important goal of these meetings is to promote clear and effective communication with tribes to promote credibility, trust, and respect.
Additional Information and Resources
- Tribal Summit: Building More Than Roads and Bridges with Our Tribal Partners (Iowa DOT 2023).
- Successful Practices for Effective Tribal Consultation (Louis Berger Group. 2013).
- NCHRP Web-Only Document 281: Integrating Tribal Expertise into Processes to Identify, Evaluate, and Record Cultural Resources (Luhman and Klein 2020).
