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Tribal Consultation Guidelines

Table of Contents

About These Guidelines

The Relationship Between the Federal Government and Indian Tribes

Legal Requirements and Directives to Consult with Indian Tribes

U. S. DOT and FHWA Policies

Consultation with Indian Tribes Under Section 106

Frequently Asked Questions and Answers

Principles for Successful Consultation

About These Guidelines

Many different laws, regulations, executive orders, and Federal policies direct a Federal agency's responsibilities toward Indian tribes. One law, the National Historic Preservation Act (NHPA), requires that Federal agencies carry out the requirements of Section 106 by consulting with Indian tribes that may attach religious and cultural significance to historic places affected by an agency's undertakings.

These Tribal Consultation Guidelines are intended to serve as a reference for Federal Highway Administration (FHWA) staff responsible for carrying out the requirements of Section 106. Users of these guidelines are expected to have a basic knowledge of the Section 106 review process. While users may refer to a particular section of these guidelines when an issue or question arises, we recommend that they familiarize themselves with the entire guidelines to understand the spectrum of issues that may be encountered.

Note that this document focuses only on tribal consultation, and is not a source for understanding the full breadth of Section 106 responsibilities, such as consulting with State Historic Preservation Officers (SHPOs) or involving the public. These guidelines should be viewed as one source of information, to be supplemented when new information is obtained, laws or policies change, or responsibilities shift.

Each FHWA division is responsible for meeting Section 106 requirements to consult with Indian tribes for its projects. FHWA staff may refer questions on Section 106, and the requirements of Section 106's implementing regulations to consult with Indian tribes, to David Clarke, Federal Preservation Officer (David.Clarke@dot.gov 202-366-2060) or Stephanie Stoermer, Resource Center Technical Service Team (Stephanie.Stoermer@dot.gov 720-963-3218).

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The Relationship Between the United States and Indian Tribes

The Federal Government's unique relationship with Indian tribes is derived from the U.S. Constitution, treaties, Supreme Court decisions, Federal statutes, and Executive orders. The history of this relationship is deeply rooted in American history, dating to the earliest contact between colonial and tribal governments. Like the colonial powers, the United States acknowledges Indian tribes as sovereign nations; thus, the relationship exists on a government-to-government basis.

Staff responsible for carrying out tribal consultation should be familiar with U.S.-Indian history because it greatly influences the conduct of consultation between Federal agencies and Indian tribes.

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Legal Requirements and Directives to Consult with Indian Tribes

Statutes

A number of statutes impose requirements on Federal agencies to consult or coordinate with Indian tribes. It is useful to be familiar with the various requirements not only to ensure compliance, but also to explore opportunities to integrate consultation requirements. For instance, if a project requires compliance with both NHPA and the National Environmental Policy Act (NEPA), it is beneficial to simultaneously collect information and carry out consultation under both statutes.

In addition, FHWA should talk with interested tribes early in the planning process to identify special authorities that convey specific requirements for consultation or consideration, such as a treaty that reserves certain rights for a tribe that may be impinged upon by a proposed transportation project.

The following are summaries of the key statutes that require consultation with Indian tribes or accommodation of tribal views and practices. This is not an exhaustive list of requirements nor does it imply that each of these statutes is applicable to each proposed project.

  • The National Historic Preservation Act of 1966, as amended, codified at 54 U.S.C.300101 et seq. is the basis for the tribal consultation provisions in the Advisory Council on Historic Preservation's (ACHP) regulations. The two amended sections of NHPA that have a direct bearing on the Section 106 review process are:
    • Section 101(d)(6)(A), which clarifies that historic properties of religious and cultural significance to Indian tribes may be eligible for listing in the National Register of Historic Places, and
    • Section 101(d)(6)(B), which requires that Federal agencies, in carrying out their Section 106 responsibilities, consult with any Indian tribe that attaches religious and cultural significance to historic properties that may be affected by an undertaking.
    • Section 106 of NHPA requires Federal agencies to consider the effects of their actions on historic properties and to seek comments from the ACHP. Also known as the Section 106 review process, it avoids unnecessary harm to historic properties from Federal actions. Its procedure for meeting Section 106 requirements is defined in the ACHP's regulations, 36 CFR Part 800, “Protection of Historic Properties.” The ACHP's regulations incorporate these provisions and reflect other directives about tribal consultation from Executive orders, Presidential memoranda, and other authorities. The regulations include both general direction regarding consultation and specific requirements at each stage of the review process. (Section 106 is discussed more fully in the next section, “Consultation with Indian Tribes Under Section 106 of NHPA.”)
  • The National Environmental Policy Act of 1969 (NEPA) requires the preparation of an environmental impact statement (EIS) for any proposed major Federal action that may significantly affect the quality of the human environment. The statutory language of NEPA does not mention Indian tribes. However, the Council on Environmental Quality regulations do require agencies to contact Indian tribes and provide them with opportunities to participate in various stages of preparation of an EIS.
  • The American Indian Religious Freedom Act of 1978 establishes the policy of the Federal Government “to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including, but not limited to, access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.”
  • The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) requires agencies to consult with Indian tribes regarding planned activities on Federal and tribal land that might result in the excavation of Native American human remains or other cultural items as defined in NAGPRA. When there is an inadvertent discovery of human remains or cultural items on Federal or tribal lands, work in the area must cease, the land-managing agency must notify the appropriate tribe(s), and consultation must be initiated. On tribal lands, the consent of the appropriate Indian tribe is required for planned excavation or removal human remains and cultural items. Because FHWA is not a land-managing agency, it is not directly subject to the requirements of NAGPRA. In instances where a proposed project is funded through the Federal Aid Highway Program, the land-managing agency is ultimately responsible for compliance. NAGPRA also imposes requirements on entities that receive Federal funds from any source and have possession of Native American human remains and protected cultural items. In certain instances, State Transportation Agencies (STAs) that receive Federal Aid Highway funds may be subject to this provision NAGPRA usually applied to museums and other institutions.

Executive Orders

In many instances, executive orders apply to agencies on an agency-wide or program-wide basis rather than on a project-by-project basis. However, staff responsible for working or coordinating with Indian tribal governments should be familiar with the applicable Executive orders and act in accordance with the intent of the directives. Several of the orders specific to consultation with Indian tribes include:

  • Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (2000) directs Federal agencies to respect tribal self-government and sovereignty, tribal rights, and tribal responsibilities whenever they formulate policies “significantly or uniquely affecting Indian tribal governments.” The Executive order applies to all Federal agencies, encouraging “meaningful and timely” consultation with tribes, and consideration of compliance costs imposed on tribal governments when developing policies or regulations that may affect Indian tribes.
  • Executive Order 13007, “Indian Sacred Sites” (1996), applies to all federally owned lands except “Indian trust lands.” It encourages land-managing agencies to:
    • accommodate access to and ceremonial use of Indian sacred sites by Indian religious practitioners, and
    • avoid adversely affecting the physical integrity of such sites.
  • Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (1994), is designed to focus Federal attention on the environmental and human health conditions in minority communities and low-income communities. It is also designed to promote nondiscrimination in Federal programs substantially affecting human health and the environment. Specifically, Section 6-606 of the order states that “each Federal agency responsibility set forth under this order shall apply equally to Native American programs.”

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U. S. DOT and FHWA Policies

The U. S. Department of Transportation (DOT) and FHWA have a number of programs, policies, and procedures that require or encourage FHWA and other DOT agencies to consult with Indian tribes.

  • DOT Order 5301.1 (November 16, 1999) directs DOT agencies to build more effective working relationships with Native American tribal governments and to provide increased opportunities for Native Americans to participate in transportation programs. DOT policy, as set forth in this document, directs agencies to:
    • Consult with Indian tribes prior to undertaking any actions that may significantly or uniquely affect them.
    • o Work with federally recognized tribes and their designated representatives on a government-to-government basis, respecting their rights to represent their respective interests. This process may be supplemented by seeking information from other relevant sources and may be required by specific laws, regulations, and Executive orders. This includes, but is not limited to, traditional leaders or elders and associations of tribal officials.
    • Treat correspondence from tribal leadership in the same manner as congressional correspondence.
    • Adapt processes to recognize American Indian, Alaska Native, and tribal culture and traditions.
    • Avoid infringing on tribal lands and accommodate access to and ceremonial use of sacred sites and ancestral burial grounds on Federal and tribal lands.

FHWA guidance developed by the Indian Issues Task Force on government-to-government relations with federally recognized Indian tribes still applies today. It promotes collaborative decision making with Indian tribal governments, and directs FHWA to:

  • Ensure that during the transportation planning and FHWA NEPA processes, tribes are consulted and tribal concerns are considered for federally funded State transportation projects that affect tribal trust resources, tribal communities, or Indian interests.
  • Assist State transportation agencies (STAs) and Metropolitan Planning Organizations (MPOs) in understanding the transportation, environmental, and cultural needs and interests of the different Indian tribal governments, to effectively involve them in planning and program and project development.
  • Encourage the development of partner relationships and active participation between Indian tribal governments, STAs, and MPOs, and define the Federal-tribal-State relationship that is appropriate for each Indian tribe in the State.

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Consultation with Indian Tribes Under Section 106 of NHPA

Consultation means the process of seeking, discussing, and considering the views of others, and where feasible, seeking agreement with them on how historic properties should be identified, considered, and managed. Consultation is built upon the exchange of ideas, not simply providing information. [36 CFR 800.16(f)]

Indian tribe means an Indian tribe, band, nation, or other organized group or community, including a native village, regional corporation or village corporation…eligible for the special programs and services provided by the United States to Indians because of their status as Indians. [36 CFR 800.16(m)]

The requirements to consult with Indian tribes in the Section 106 review process are derived from the specific language of Section 101(d)(6)(B) of NHPA. They are based on the policies and directives embodied in the U.S. Constitution, treaties, Supreme Court decisions, and Executive orders discussed in the last section of this guidance. Federal agencies are required to consult with any Indian tribe that attaches religious and cultural significance to a historic property that may be affected by an undertaking.

The process for meeting Section 106 requirements is defined in the ACHP's regulations, (36 CFR Part 800), which provide both overall direction as well as specific requirements regarding consultation at each step of the review process. Section 800.2(c)(2) of the regulations outlines the following important principles and general directions to Federal agencies regarding consultation with tribes:

  • The agency official shall ensure that consultation under the Section 106 review process provides the Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties; advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance; articulate its views on the undertaking's effects on such properties; and participate in the resolution of adverse effects.
  • Historic properties of religious and cultural significance to an Indian tribe may be located on ancestral, aboriginal, or ceded lands of that tribe. Accordingly, agencies must make a reasonable and good-faith effort to identify Indian tribes that may attach such significance but may now live away from the undertaking's area of potential effect, sometimes at a great distance.
  • Federal agencies should be respectful of tribal sovereignty in conducting consultation, and must recognize the government-to-government relationship that exists between the Federal Government and federally recognized Indian tribes.
  • An Indian tribe may enter into an agreement with a Federal agency regarding any aspect of tribal participation in the review process. The agreement may specify a tribe's geographic area of interest, types of projects about which they wish to be consulted, or provide the Indian tribe with additional participation or concurrence in agency decisions under Section 106 provided that no modification is made to the roles of other parties without their consent.

While the ACHP's regulations are fairly prescriptive in nature, they only direct agencies on what to do and when in the process to consult. They do not direct how to carry out consultation. Aside from requiring consultation, the regulations are not intended to specify how to carry out consultation or with which of the more than 566 Indian tribes each agency is to consult in any given situation.

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Frequently Asked Questions and Answers

1. When is FHWA required to consult with Indian tribes?
The 1992 amendments to National Historic Preservation Act (NHPA) require all Federal agencies, in carrying out the Section 106 review process, to consult with Indian tribes or Native Hawaiian Organizations (NHOs) when undertakings may affect properties of traditional religious and cultural significance. This requirement applies to undertakings located on or off tribal lands. The regulations implementing Section 106 of the NHPA (36 CFR Part 800) state that, “the agency official shall ensure that consultation in the Section 106 process provides the Indian Tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects.” [36 CFR 800.2(c)(2)(ii)(A)]

2. If the Federal transportation project will not occur on or affect historic properties on tribal lands, is DOT still required to consult with Indian tribes?
Yes, NHPA requires consultation with Indian tribes that attach religious and cultural significance to historic properties, regardless of the location of the proposed undertaking. At the initiation of the process, the Federal agency should identify and invite any Indian tribe(s) that may attach religious and cultural significance to properties that may be affected to participate in the Section 106 review process. While the vast majority of transportation projects do not affect historic properties on tribal lands, transportation officials should be aware that the role of tribes in the Section 106 review process is different on tribal lands.

3. Which Indian tribes must be consulted?
Federally recognized tribes or NHOs that may attach religious and cultural significance to properties that may be affected by FHWA undertakings on or off tribal lands must be consulted. FHWA must make “a reasonable and good faith” effort to identify such Indian tribes and invite them to be consulting parties. This includes Indian tribes that no longer reside in a given area, but may still have ancestral ties to an area. Many Indian tribes were moved from their homelands while others were at one time mobile, moving from place to place. Therefore, an Indian tribe may very well have places that are important in locations where they may not have physically resided for many years. If an Indian tribe has not been invited by the agency to consult, the tribe may request in writing to be a consulting party and must be considered as such by the agency.

4. How do I determine if an Indian tribe is federally recognized?
Consult the list maintained by the U.S. Department of the Interior's Bureau of Indian Affairs (BIA) (https://www.bia.gov/bia). The list is published annually in the Federal Register. Or contact BIA headquarters or one of the BIA regional offices throughout the United States.

5. If there are no federally recognized Indian tribes in the State where the project is located, does FHWA still have to consult with any tribes?
Federal agencies have to make a reasonable and good faith effort to identify Indian tribes that may have an interest. Even when there are no federally recognized Indian tribes in a State, FHWA must still identify Indian tribes that should be invited to participate in consultation. The circumstances of history may have resulted in an Indian tribe now being located a great distance from its ancestral homelands and places of importance.

6. How do I identify the Indian tribes that may have an interest in the area?
Any number of documentary sources can be used including ethnographies, field records, histories, experts at local universities, and oral accounts. Keep in mind, however, that no one source is comprehensive. The National Park Service also maintains the Native American Consultation Database (NACD), which may be helpful in identifying Indian tribes with an interest in an area. It can be accessed online at: https://www.transit.dot.gov/regulations-and-guidance/environmental-programs/tribal-consultation. The State Historic Preservation Officer (SHPO), other Tribal Historic Preservation Officers (THPO), or other Federal agencies may also be consulted for any records they maintain for this purpose. Other Internet sources include www.memory.loc.gov/ammem/amlaw/lwss-ilc.html, which has information on historic Indian land areas. Finally, consultants can be used to compile the available resources and provide the agency with the required information.

7. What is FHWA's responsibility to consult with State-recognized Indian tribes or non-federally recognized Native American groups?
Under the ACHP's regulations at 36 CFR 800.2(c)(5), a Federal agency may invite such groups to participate in consultation based on a demonstrated interest in the undertaking's effects on historic properties. However, the term “Indian tribe” in NHPA only refers to federally recognized Indian tribes, which includes Alaska Native Villages and Village and Regional Corporations.

The question of inviting non-federally recognized tribes to participate in consultation can be both complicated and sensitive and, therefore, deserves careful consideration. For example, some of these groups have chosen not to seek recognition from the Federal Government but have ancestral ties to an area. Other non-federally recognized tribes may have lost their recognition as a result of Federal Government actions in the 1950s to terminate relationships with certain tribes. Non-federally recognized tribes should meet the threshold of “demonstrated interest”—that is, they have ancestral ties to the project area or document, or are concerned with the effects of the undertaking on historic properties for other reasons. In some cases, members of a non-federally recognized tribe may be direct descendants of the group that occupied an affected archeological site. In addition, they might be able to provide the Federal agency with important information regarding historic properties that should be considered in the review process.

8. FHWA believes that a State-recognized tribe should be included in the consultation process, but the federally recognized tribes object. How should the agency proceed?
It is important to remember that the Federal agency ultimately makes the decision regarding the involvement of other consulting parties, including non-federally recognized tribes. However, objections raised by those parties that are entitled to consult should always be considered in a Federal agency's decision. Rather than denying a party the opportunity to participate in consultation, there may be ways in which every party can be accommodated. For instance, separate consultation meetings can be held, with information and views shared among all the consulting parties, as appropriate. Excluding parties that have a demonstrated interest in the affected historic properties (see 36 CFR Part 800.2(d)) is legally allowable, but not consistent with the spirit and intent of the Section 106 process. The process is intended to provide both the public and certain individuals or groups with the opportunity to provide their views so that the Federal agency can make an informed decision. Additionally, such parties may have information that assists the Section 106 process.

9. Who initiates the consultation process with an Indian tribe?
Agency officials should initiate contact with tribes at the highest level. For FHWA, consultation with an Indian tribe should be initiated by the Division Administrator through a letter to the head of the tribe. Indian tribes are sovereign nations and must be shown the same respect and formality as other nations. The agency official should consult with individuals designated by the tribe or Native Hawaiian organization for this purpose. Once the tribe has been contacted, it may be acceptable to the tribe for consultation to take place between the agency and tribal staff. Protocols for consultation can be developed through discussions and meetings with individual tribes or multiple tribes as they wish. Any understandings may differ from tribe to tribe as they have different governments, worldviews, and cultural protocols. If a division has entered into an agreement with an Indian tribe over how Section 106 consultation will take place, project consultation should occur in accordance with the terms of that agreement. FHWA's project documentation should reference the agreement.

10. What are appropriate consultation methods for individual projects?
Sending a letter signed by the Division Administrator to the tribal leader is the appropriate way to begin the consultation process. Letters should be followed up by phone calls, particularly if there is no response to the initial attempt at contact. The consultation process must provide an Indian tribe a reasonable opportunity to identify its concerns about historic properties; advise on the identification and evaluation of historic properties, including those of religious and cultural significance; articulate views on the project's effects on such properties; and participate in the resolution of adverse effects.

Meetings or on-site visits may be the most practical way to accomplish these requirements but may not be necessary for all projects. Consultation should be approached with flexibility within the overall project planning process. Some consulting parties may not wish to be notified about every project that comes up in a given area. Formalized meetings can help determine what types of projects, and specific locations or undertakings are of concern to individual tribes or NHOs.

11. Are there processes available for streamlining tribal consultation?
Yes. Consultation can be addressed through the development of agreements between the agency and the tribe [36 CFR 800.2(c)(2)(ii)(E), thereby speeding up the consultation process. Agreement documents can specify in what manner consultation will be carried out including the concerns about confidentiality. Such agreement documents can cover all aspects of the Section 106 process “provided that no modification may be made in the roles for other parties to the Section 106 process without their consent.” States can also include tribes or native Hawaiian organizations in the development of Section 106 Programmatic Agreements (36 CFR 800.14) for highway projects. These PAs may allow the STA to conduct some Section 106 review and can included provisions to exempt certain types of activities (e.g. the replacement of traffic lights) from Section 106 review. Such agreement documents may ensure that tribes or native Hawaiian organizations are not asked to consult about minor highway project, exempted projects, or areas that have been previously disturbed. The Section 106 regulations also have a streamlining provision for consultation that allows for multiple steps within the Section 106 process to be addressed simultaneously as long as the agency official and SHPO/THPO agree and as long as the consulting parties and public have had a chance to express their views [36 CFR 800.3(g)].

12. Can State transportation agencies carry out tribal consultation?
The FHWA cannot delegate its government-to-government responsibility and overall consultation and coordination duties. However, if an Indian tribe agrees in advance, FHWA may rely on STAs to carry out day-to-day, project-specific coordination and consultation. The regulations allow the agency official to “authorize an applicant or group of applicants to initiate consultation with the SHPO/THPO and others, but remains legally responsible for all findings and determinations charged to the agency official.” [36 CFR 800.2(c)(4)] Even with such an arrangement, FHWA must “notify the SHPO/THPO when an applicant or group of applicants is so authorized” and remains responsible for ensuring that the consultation process is carried out, meeting the spirit and intent of the law, as well as resolving any issues or disputes. FHWA should encourage STAs to develop their own relationships with Indian tribes in recognition that STAs may carry out most of the cultural resources work on transportation projects. To the extent that FHWA can facilitate these relationships, it should provide opportunities for STAs and tribes to meet and work together. However, it must be recognized that some Indian tribes may not be willing to work with any entities other than Federal agencies.

13. What are Traditional Cultural Properties/Places?
The term “Traditional Cultural Property” or “Traditional Cultural Place” (TCP) is used in the context of the National Register of Historic Places to identify a property “that is eligible for inclusion in the National Register because of its association with cultural practices or beliefs of a living community that a) are rooted in that community's history, and b) are important in maintaining the continuing cultural identity of the community.” For a TCP to be found eligible for the National Register, it must meet the existing criteria for eligibility as a building, site, structure, object, or district. TCPs are defined in NPS guidance, but are not referenced in a statute or regulation. In the Section 106 process, the appropriate term is “historic property of religious and cultural significance to an Indian tribe.” Section 101(d)(6)(A) of NHPA reminds agencies that such properties may be eligible for the National Register if they meet the criteria for eligibility.

14. How can I identify historic properties that may possess traditional religious and cultural significance to tribes or Native Hawaiian organizations?
The identification of properties of traditional religious and cultural significance can be very difficult for those unfamiliar with specific cultural practices. Some cultural resource management consulting firms employ ethnographers who may be trained in identifying these types of sites; however, the NHPA and regulations specifically state that “The agency official shall acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.” [36 CFR 800.4(c)(1)]

Unless such properties have already been identified and the information is readily available, you probably will not know of them in advance. As with any project that might affect historic properties, you must determine if the action is the kind that might affect historic properties if such properties are present. Therefore, if the project is the kind of action that might affect places such as archeological sites, burial grounds, sacred landscapes or features, or medicinal plant communities, then you should consult with Indian tribes that might attach significance to such places.

15. What procedures should be followed if a tribe does not want to divulge information to agency officials regarding places of traditional religious and cultural significance?
Many tribes and Native Hawaiian organizations beliefs require that the location and even the existence of traditional religious and cultural properties not be divulged. It is vital that the agency officials work with the tribes to identify sensitive locations while respecting tribal desires to withhold specific information about these types of sites. Section 304 of the NHPA permits Federal agencies to withhold sensitive information from public disclosure. Issues surrounding confidentiality concerns can also be included in an agreement document between the tribe and FHWA as provided under 36 CFR 800.2(c)(2)(ii)(E). For additional guidance about confidentiality, see National Register Bulletin 29, Guidelines for Restricting Information About Historic and Prehistoric Resources (http://www.nps.gov/nr/publications/ - this content is no loner available).

16. Can FHWA fund tribal consultation in the Section 106 process?
Yes, FHWA can fund certain tribal consultation under certain circumstances, but it is not required to do so. FHWA's current environmental regulations provide for participation in all costs necessary to mitigate the adverse impacts of the project to the human and natural environment, as long as the costs (1)actually result from FHWA or Federal Transit Administration (FTA) action, and (2) the proposed measure is deemed a reasonable public expenditure after considering the effects of the action and the benefit of the proposed mitigation measure (23 CFR 771.105(d)). This includes the costs of coordinating with affected tribes to determine the National Register eligibility of a site or in determining the presence of sites with traditional religious and cultural significance.

17. What specific activities are eligible for reimbursement?
In accordance with FHWA guidance, examples of reimbursable costs may include those costs associated with expert consultants to identify historic properties. This includes field visits to provide information about specific places or sites, monitoring activities, research associated with project level historical investigation, and travel expenses.

Federal agencies may also assist Indian tribes' participation in face to face consultation meetings by funding travel expenses. However, Federal agencies should not expect to pay a fee to an Indian tribe or any consulting party to provide comments and/or concurrence in a finding or determination. A State transportation agency may have authority to fund tribal coordination and may wish to develop such an arrangement with the tribe(s) affiliated with the State.

18. What costs are not eligible for reimbursement?
In accordance with FHWA guidance, FHWA would not participate in the reimbursement of costs for the review of documents, or in the establishment and general operating costs of an Indian tribe's historic preservation office, such as the cost of securing office space and utilities, paying salaries of administrative personnel, and purchasing office equipment. As with other Federal-aid funding decisions, specific eligibility determinations related to project level costs and maintenance expenses are also at the discretion of the State at the time of the funding request.

It should be noted that the funding THPOs receive is for implementation of a historic preservation program on their lands, not for participating in Federal undertakings off tribal lands. The fact that a tribe receives funding pursuant to its status as a THPO should not be a factor in considering reimbursement for services a tribe may perform for a Federal agency for a project off tribal lands.

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Principles for Successful Consultation

Respect

  • Respect tribal sovereignty.
  • Become aware of tribal conventions and try to conform; respect customs.
  • Behavior you perceive as normal may be insulting or offensive to others. Consider native perspectives and values.
  • Do not demand that everyone adhere to your deadline. Instead, explain why it exists, who set it, and why it is important. Above all, be as flexible as possible.
  • Be sensitive to time and costs. A tribe may not have the resources to stay involved in consultation or attend meetings, and may have difficulty attending meetings or corresponding.
  • Traditional leaders have many duties; try not to impose. Instead, look for ways to work cooperatively, because this is your project and consultation is your responsibility.
  • Do not voice your opinion on what is best for the tribe; you do not know what that may be.
  • Understand the significance of history. Traditional U.S. Government relations with tribes may color current perceptions and attitudes, and cause distrust or suspicion.

Communication

  • Communicate in person whenever possible—do not rely on letters; follow up by phone or in person. Expect oral communication.
  • Do not expect prompt answers. Tribal officials may need time to consult others, including tribal councils or the head of the tribal government.
  • Do not assume silence means concurrence; it could signal disagreement. Verify views with the official tribal representative.
  • Ask members about their preferred way of doing business. Be aware that the cultural norms of tribal citizens may be different from yours, and that each of the more than 560 Indian tribes has a unique culture and heritage.
  • Do not assume everyone is the same—for example, traditional authorities vs. tribal governments.
  • Develop points of contact through the tribal government. Do research ahead of time to find out with whom you need to speak; get to know the people you are working with.
  • Be mindful of appropriate behaviors with whom you are speaking. Learn by observation and talking to others. Tribal governments may consist of elected leadership (tribal leader, tribal council, tribal courts), traditional leaders (treaty councils, tribal elders, spiritual leaders), and tribal administration (program managers and administrators).

Effective Consultation

  • Consider establishing a working group for repeated ongoing consultation.
  • Identify issues early. Initiate dialogue with the appropriate tribes that may have an interest in the issues.
  • Suggest a process for consultation and discuss it with the tribes.
  • Focus on partnerships rather than on project-by-project coordination.
  • Develop an understanding of the tribe's decision making process and decision makers.
  • Remember that consent by one tribal member does not necessarily mean consent by the tribe.
  • Remember to document all correspondence, follow-up telephone calls, and visits to project sites and reservations.
  • Find out if you need to send information to the tribal leader as well as any tribal staff you are working with.
  • Ask tribes to keep you up-to-date on changes such as updated addresses or new tribal leadership.

Productive Meetings

  • Offer to go on-site with traditional authorities; some people may not relate to maps, while site visits may stimulate consideration of alternatives.
  • Do not set your own meeting agenda without consulting what tribes expect the process and substance to be. Tribes may have their own ways of conducting meetings.
  • Be prepared on issues and open to tribes' perspectives.
  • Do not create expectations or make commitments that you are unable, unwilling, or do not have the support to fulfill.
  • Be clear about the meeting's goals and what needs to be accomplished in the time you have, so that participants can stay focused, but be prepared to be flexible in order to hear what others feel a need to say.
  • Give plenty of notice beforehand so that tribal members have adequate time to prepare. Provide participants with maps, hotel information, a list of all attendees, an agenda, and most important, project documentation understandable to non-transportation professionals.
  • Speak to tribal members by phone beforehand so that you know who will be attending. Allow tribes to send as many representatives to meetings as they wish, but explain any limitations that your agency may have with funding travel.
  • Check if anyone has specials needs, such as some senior citizens.
  • Make sure you invite tribes to sit at the table, and introduce all participants.
  • Review your agency's mission and operations. Do not assume that everyone knows how Federal transportation agencies fund projects, the role of the STA, or other issues.
  • Take notes at meetings. Circulate draft minutes for comments and corrections to be sure they accurately reflect the understanding of all.

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