Chapter 4 Frequently Asked Questions and Other Guidance on How to Work with Tribes
This section contains answers to frequently asked questions, consultation guidance and troubleshooting tips. Since Chapter 3 addressed when you should conduct consultation, this chapter discusses how you should consult. Faithfully following the process outlined in Chapter 3 is not a guarantee of successful consultation. The establishment of trustworthy, honorable, mutual relationships is a key component of successful consultation and there are certain protocols of which you should be aware of when consulting with tribes. Treating each project consultation as part of a larger process to build tribal trust, will help you when working with the tribes on future projects. Generally following these principles can help you build trust with tribes, which will in turn help you move more efficiently through the consultation process.
There are nine themes for this guidance and FAQ:
Initiating consultation
Comprehensive consultation
Treaty rights
Cultural Resources
Intertribal relations
Resolving tribal concerns
Tribal Compensation
Permitting
Resources to help you
Initiating Tribal Consultation During NEPA Review
How do I identify which tribes to consult?
The WSDOT Tribal Liaison Office periodically asks each tribe to update their “Consultation Area” for WSDOT projects. The result is a map that you can use to answer this question. These maps were created specifically for WSDOT and in most cases do not represent a legal or firm boundary. WSDOT needs to consult with that tribe on any projects located within that area. See Chapter 3 for the level of consultation recommended for projects based on their environmental classification.
The consultation area maps are available on the WSDOT GIS workbench. If you do not have access to the workbench, you can contact the WSDOT Environmental Tribal Liaison to identify which tribes you should invite to consult on your project. These maps were shared with the agency by special permission and are not for general publication or distribution. 
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What is the difference between a tribe’s “consultation area” and “Usual and Accustomed Areas”?
At WSDOT’s request, tribes have specifically delineated a “consultation area” for WSDOT projects. These are neither legal nor firm boundaries, but an expressed area of interest. A tribe may refine its consultation area at any time. The sole purpose of these maps are to help project teams answer the question, “which tribes do I need to consult with on my project?”
“Usual and Accustomed Areas” (U&A) is a legal term that comes from the treaties that tribes in this area signed with the federal government. Tribes reserved the right to fish in their “usual and accustomed grounds and stations”. These U&A areas have been adjudicated by the federal courts. Previously adjudicated boundaries may change as a result of inter-tribal litigation and newly recognized tribes may seek to have their treaty rights adjudicated as well. Many tribes also reserved the right to hunt and gather in “open and unclaimed lands”. The geographic descriptions of these areas have yet to be determined. Therefore, tribal treaty rights are not limited to a tribe’s U&A.
Both NEPA and Section 106 of the National Historic Preservation Act require WSDOT to consult with interested or affected tribes. These statutes do not limit that consultation by any particular set of legal geographic boundaries. Thus, the only time a project team needs to determine which tribes have treaty protected rights within the project area is when the project has the potential to impact a treaty right (e.g. building a ferry terminal that displaces tribal fishers, or a new alignment through public lands that could affect treaty hunting or gathering rights). If your project has the potential to impact treaty fishing rights, please review Appendix B (pdf 1.33 mb) to determine which tribes have treaty fishing rights in the area. If you have questions or need assistance, contact the Environmental Services Tribal Liaison. top
What if my project is within the consultation areas of multiple tribes?
This is very common. You will need to consult with each affected tribe. See the section below entitled “Intertribal Relations” for more information and tips on this process. top
Do I need to work with non-federally recognized tribes?
Yes, though they do not have the same legal rights to consultation as federally recognized tribes. Working with non-federally recognized tribes is not considered formal government-to-government consultation. WSDOT may consult with non-federally recognized tribes as “additional interested parties” under Section 106 of the National Historic Preservation act, and as an affected community under NEPA.
You will want to work with non-federally recognized tribes on your
Tribal Relations Tip:
With the exception of meetings open to the public, do not invite non-federally recognized tribes to meetings attended by federally recognized tribes. Some federally recognized tribes will refuse to consult on your project if you do not acknowledge their status and legal rights to consultation as distinct from non-federally recognized tribes. |
project because they may have valuable information about cultural resources located within your project area. Furthermore, some of these non-federally recognized tribes have applied for federal recognition. Should the federal government formally recognize them as a tribe, all of the consultation rights and processes would apply.
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Does WSDOT have any programmatic agreements with tribes?
Yes. Before you initiate consultation with a tribe, you should review any applicable programmatic agreements or memorandums of agreement that may be in place. See Appendix H (pdf 2.18 mb) for a copy of these agreements. For example, WSDOT and FHWA are in the process of negotiating agreements with five Tribal Historic Preservation Offices (THPO). WSDOT, FHWA and the Lummi Nation recently entered into Memorandum of Agreement for consultation on natural resource issues. Contact the WSDOT Tribal Liaison Office for the most up-to-date information on tribal agreements. top
Who should send consultation letters and conduct consultation?
The person signing letters should be a person of authority on the
When should you involve the WSDOT Tribal Liaisons?
It’s important for the WSDOT Tribal Liaison to have a general awareness of the tribal consultation occurring on WSDOT projects. You should involve the Liaison if you need assistance, if conflicts arise on your project, or if questions or issues arise related to tribal policy. Any formal meetings or presentations with tribal leadership should also include the Liaison. |
project and should be as consistent throughout the project as possible. Some WSDOT regions have designated individuals to sign consultation letters for all projects. If your region / mode does not have a designated person for all letter, the regional environmental manager or project manager should sign the consultation letters.
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How do I initiate formal consultation with a tribe?
Formal consultation means working with the highest levels of tribal government. It should be initiated by sending a letter to the chairperson of the tribe, with a copy including attachments sent to the designated staff representatives for natural and cultural resources. If your project is located on or near tribal lands, you may also need to include the tribal planning, real estate and Tribal Employments Rights Ordinances (TERO) offices. Some tribes have specific consultation protocols that you should observe when consulting with that tribe. See Appendix I (pdf 33 lb) for a table of tribal specific protocols. The Environmental Tribal Liaison will periodically request that tribes reaffirm or update these protocols. You may contact the Environmental Tribal Liaison to verify these protocols.
Your consultation letter should include the following information:
- Address the Tribal Chairperson as “The Honorable”, followed by their first and last name.
- Identify the project proponents
- Describe the type of consultation is being initiated (NEPA, WSDOT EO 1025.00, Section 106 etc). In most cases you can initiate consultation for multiple laws in one letter. See Appendix C, D and E for sample letters.
- Location of the proposed project (section, township, range, milepost), including a map if available.
- General description of the proposed project activities, in particular any known ground-disturbing activities or in-water work.
- Copy of any applicable environmental studies completed prior to scoping.
- WSDOT and consultant contact information (if applicable or if available at that time).
Example of additional relevant information:
The Columbia River Crossing Project will likely impact Fort Vancouver, a historic trading post that includes Native American burials from across the Northwest and as far away as Hawaii. Simply describing the project location, without mentioning the Fort would not solicit the same level of response from non-local tribes. The project teams wanted to avoid tribes entering the consultation process late in the environmental review, so they mentioned the likely impact to the Fort in their consultation letter.
Remember, your goal is to reduce risks by identifying issues as early as possible! |
- Any other information you feel would be helpful in
understanding the proposed project and its potential impact to tribal interests.
If you are preparing an Environmental Impact Statement and plan to use this letter to invite the tribes to be a participating agency, you should include the following additional information:
- Clearly request the involvement of the tribe as a participating agency
- Explain why you think the tribe may be interested in the project. Generally, the location of the project within the tribe’s Consultation Area is sufficient.
- Describe the roles and responsibilities of a participating agency
- Specify a deadline (standard is 30 days from receipt of letter) for responding to the invitation.
- Explain that the tribe must accept the invitation in order to become a participating agency.
See Appendix F (pdf 31 kb) for a response post card you can attach to your consultation letter. You should attach the post card to the letters sent to the tribal staff, and not just the chairperson. top
How do I know which tribal departments and staff to contact within a tribe?
When you initiate formal consultation with the tribal chairperson, you need to copy all affected departments within the tribe. Generally, for a project located off of tribal lands, you will need to contact the cultural and natural resources departments. If the project is located on or near tribal lands, you may need to contact the tribal planning, real estate and Tribal Employment Rights Ordinance (TERO) office.
You do not need to copy all departments on future consultation letters that are specific to one discipline. For example, you should not send an Area of Potential Effects (APE) letter to the tribal natural resources department, since an APE is specific to cultural resources only.
Contact information for the main five tribal departments WSDOT frequently works with (Chair, Planning, Cultural Resources, Natural Resources, TERO) is available on the WSDOT Tribal Liaison webpage:
You’ll notice that some tribes have multiple staff listed for a given department. You will need to contact each of those people when consulting on issues within their discipline. These are the first points of staff contact for the tribe. The tribe may assign a different staff person to work on your project.
If at any time, the tribe informs you that the staff contact has permanently changed, please notify the WSDOT Tribal Liaison Office so we can immediately update the website. top
Is working with tribal staff considered government-to-government consultation?
Each tribe has their own standards for what they consider “consultation.” The WSDOT Tribal Liaisons asked each tribe to define their consultation protocols, including how WSDOT
Tribal Relations Tip:
If you are unsure of a tribal staff person’s authority to consult or make decisions, don't be afraid to ask them. |
staff may interact with tribal staff. See
Appendix I (pdf 33 kb) for a table of specific consultation protocols for each tribe. Keep in mind that many tribes do not delegate decision making authority to staff, as the state often does. Some tribal staff do not have authority to make decisions on behalf of the tribal government, while others have been given authority via tribal resolution. It’s generally accepted that once consultation is formally initiated at the highest level of tribal government, WSDOT can consult with tribal staff until and unless they elevate an issue to tribal leadership for a decision. However, some tribes require policy staff or tribal leadership involvement on a project to consider the interaction “consultation.”
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When is it appropriate to involve tribal leadership in your consultation?
Consultation must always be initiated with tribal leadership. Beyond that, it will depend on the circumstances of your project. If your project is large, controversial or likely to significantly impact tribal interests, you should make an extra effort to consult directly with tribal leadership. Tribal staff will often have to elevate decisions for these types of projects to their leadership, so you want to keep the leadership briefed on your project. You can do this by presenting your project to the tribal council, meeting with any relevant tribal
Tribal relations tip:
Occasionally, a tribal council member may be employed by the tribe and consult with you in a technical capacity. Generally, they are not representing the tribal council in an official capacity when they work on your project. When in doubt, ask them who they are representing. |
committees or commissions, or by sending periodic consultation reports to tribal leadership.
You need to coordinate through the tribal technical staff to meet with tribal leadership. You also need to coordinate with the WSDOT Tribal Liaison Office whenever you plan to meet with tribal leadership.
Below are a few examples:
- The SR 99 Alaskan Way Viaduct and Seawall Replacement Project in Seattle is a large project that has the potential to impact tribal burials, archaeological resources and treaty protected fishing rights. After meeting with the technical staff of each tribe individually, the project team hosted a collective meeting with tribal leaders, technical staff, and leaders from FHWA, WSDOT and the City of Seattle.
- The Washington State Ferries Office will make project presentations to the Tulalip Board of Directors and Fisheries Commission at key stages of their projects, including project scoping and as they prepare to release the draft EIS. top
Should project teams invite affected tribes to public and agency scoping meetings?
Yes. However, tribes do not generally consider public scoping meetings as consultation. One reason you should still invite tribes to public scoping meetings is because the tribe can conduct outreach to tribal members, who are also citizens of Washington State and may want to participate in the project process as members of the public. When you send the public meeting invitation, it is important that you acknowledge that participation in the public process is not government-to-government consultation, but that you are extending the tribe and its members every opportunity to participate in the environmental review process. top
Is it appropriate to have my project’s consultant firm work with affected tribes?
Yes. WSDOT often uses consultant firms to prepare environmental documents and do detailed technical analysis. Their work is done on WSDOT’s behalf and is not complete until WSDOT accepts the work. It is important to remember that interactions between your firm and tribes are not considered government-to-government consultation unless a WSDOT / FHWA representative is present.
Some tribes have had negative experiences working with certain firms or their staff in the past (on WSDOT and non-WSDOT projects). This can be difficult to resolve in some cases because it is not always possible or appropriate to hire a different firm. For example, there was one WSDOT project with five consulting tribes. Three of the tribes liked the consultant, one did not and the fifth tribe had no previous experience with that consultant. In this case, WSDOT maintained a more formal government-to-government relationship with the tribe that didn’t approve of the consultant firm.
The WSDOT tribal liaisons surveyed tribes regarding the firm / tribal interactions and the general consensus was that the following steps should be applied:
- Introduce your representative from the consulting firm to the tribe and describe the work they will be doing and WSDOT’s role.
- Acknowledge that any interaction between the firm and the tribe without a WSDOT / FHWA official present will be considered technical consultation and not government-to-government consultation. Direct your firm to include this disclaimer in any correspondence between the firm and the tribe.
- If your consultant has a poor relationship with the affected tribe(s), you should either select another qualified consultant or maintain a more formal government-to-government process and limit the interaction of the firm and the tribe. top
What if a tribe does not respond to my request for consultation?
Follow up with a phone call and / or email to the appropriate staff contact. Tribes are often overwhelmed with the number of consultation requests they receive and generally do not have dedicated funding or assigned staff specifically to meet the consultation needs of agencies. Non-response does not mean a tribe is not interested! Early identification and resolution of issues reduces future risks to the project (e.g. scope, schedule and budget overruns).
The WSDOT Highway and Local Programs Office attaches a self-addressed, stamped response post card to their consultation request letters. This card allows tribes to quickly indicate their level of interest in consulting on a specific project. See Appendix F (pdf 31 kb) for an example you can use. If you decide to use this card, you need to attach copies to the letters of both natural and cultural resource offices. If one tribal department uses the card to decline consultation, you will still need to consult with the other affected tribal departments unless and until they also decline to consult on your project. top
What if a tribe does not want to consult on my project, or wants to defer to another tribe?
Record the tribe’s deference, including the name of the tribal official, in your consultation tracking file (see Appendix I (pdf 33 kb))and tribal consultation plan. If possible, ask the tribe to send their position on the project in writing. If one department declines or defers consultation, you still need to consult with other affected departments within the tribe. For example, if a cultural resources department declines to consult on your project, or defers consultation to another tribe, you will still need to consult with the tribal natural resources department.
Keep in mind that this does not preclude the tribe from consulting on future projects in that area or in re-engaging in consultation on your project at a later date. If a tribe does choose to re-engage in consultation at a later date, you are not obligated to revisit past decisions. top
Comprehensive Consultation
What does Comprehensive Consultation mean?
Comprehensive consultation means engaging all the affected tribal departments early and on an ongoing basis throughout the life of the project. It’s about taking a holistic approach to tribal consultation during the environmental review of WSDOT projects. It means more than complying with one statutory requirement to consult, such as on the Area of Potential Effect for Section 106 of the National Historic Preservation Act.
Legal requirements for consultation are often vague, and require consultation with the “tribe.” Tribes, just like the federal and state governments, have multiple departments who have different interests and priorities. It is important for project teams to consult with all the affected tribal departments in an effort to identify and resolve issues as early as possible.
It is important that you don’t assume one tribal department can represent or notify another department. Consider this analogous example: FHWA has a project and sends the Governor a consultation letter and copies the Department of Archaeology and Historic Preservation (DAHP). FHWA’s project has the potential to impact water quality, but it did not copy the letter to the Washington State Department of Ecology. FHWA assumes that the Governor or DAHP will notify Ecology. By the time FHWA realizes its mistake and consults the Department of Ecology, the project is late in the environmental review stage. With the time it takes to resolve the water quality issue, the project runs into schedule delays.
Even though tribal governments are smaller than the state government, project teams should not assume that if they consult with the tribal cultural resources office, that the tribe doesn’t have any additional concerns, or that the cultural resource office will seek input from other tribal departments on other issues. Again, it’s in your project’s best interest to have all the affected departments consulted so you can identify and resolve any issues as early as possible. top
What are the various issues tribes might bring to NEPA discussions?
This list is by no means exhaustive and is subject to change based on the projects proximity to tribal lands or sensitive areas.
- Treaty rights
- Safety
- Fish and Wildlife
- Habitat
- Transit
- Noise
- Water quality
- Real estate
- Economic impacts
- Cultural Resources and Section 106
- Traditional cultural properties
- Traffic
- Hazardous Materials
- Environmental Justice
- Cumulative Effects
- Level of environmental analysis
- Mitigation
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Why and how should I coordinate consultation requirements under NEPA with other consultation obligations like Section 106 or treaty rights?
FHWA requires that projects coordinate, “to the fullest extent possible, all environmental investigations, reviews, and consultations be…as a single process…” 23 CFR 109
Unfortunately, due to the individual consultation requirements under different regulations, consultation with tribes and their different tribal departments is often disjointed. For example, in the past, a project team invited the tribal natural resources department to an agency scoping meeting, but limited participation of cultural resource managers to the Section 106 review process, which did not begin until much later when a preferred alternative was identified. Another project formally initiated Section 106 consultation with the cultural resource department, but never initiated consultation with the natural resource department even though there was a potential to affect treaty fishing rights.
Under this comprehensive NEPA tribal consultation process, you will invite each affected tribal department to consult during project scoping (or equivalent early stage). Chapter 3 outlines the primary recommendations for consultation activities based on each NEPA project classification. While the specific consultation requirements under Section 106, for example, won’t disappear, the specific consultation activity required will become part of a broader consultation process. By taking a more comprehensive approach, project teams should experience a smoother transition between key project review milestones while still meeting each legal consultation requirement. top
What if a tribe doesn’t respond to an invitation to be a Participating Agency for my EIS project?
You should keep trying! Since participating agency status is a new process introduced in August 2005 under SAFETEA-LU, you may need to inform the tribes of the new federal rules. However, through regular government-to-government consultation, you should seek tribal comments on the project’s Purpose and Need, Range of Alternatives, and and to collaborate with agencies in determining methodologies and detail for alternatives analysis. See Chapter 3 for the recommended consultation activities for requirements for each NEPA classification (CE, EA, EIS).
Under no circumstances should a tribe’s decision to decline Participating Agency status be seen as a waiver of meaningful consultation under NEPA, Section 106 of the NHPA or other applicable laws and policies. top
Can I share draft discipline reports with tribes?
Yes. You can share draft discipline reports as long as they have been reviewed by the appropriate WSDOT staff in accordance with WSDOT quality assurance and quality control policies. For example, cultural resources discipline reports must be reviewed by a WSDOT cultural resources specialist. FHWA does not have to approve the draft first.
You may share a biological assessment with the affected tribes if it has been sent to the US Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration (NOAA) for consultation. Keep in mind if you send a tribe a biological assessment, that USFWS and NOAA also has a legal responsibility for tribal consultation under the Endangered Species Act (ESA). top
What constitutes a “good faith effort” for consultation?
No clear threshold exits. Generally, you must provide the tribe all available opportunities to consult throughout the environmental review stage and follow up with the tribe if you don’t receive a response. Merely sending the tribe a letter or informing them on what you are planning to do would not constitute a “good faith effort.” Project teams should follow up any correspondence or invitations to consult with a phone call, email, fax etc. Tribal staffs are often overwhelmed and unable to respond to each request. You should not view non-response from a tribe as an indication of their disinterest in the project. Project teams are encouraged to contact the tribe until they speak to a representative who can convey the tribe’s level of interest. Make sure to keep track of your consultation efforts! If you have made numerous attempts to contact a tribe and were unsuccessful, you can contact the WSDOT Tribal Liaison Office for assistance. top
How do I keep track of my consultation efforts?
See Appendix J (excel 55 kb) or an example of a consultation tracking mechanism. Keeping a thorough record of your consultation efforts, tribal comments, meeting notes, commitments and agreements is extremely important.
Good consultation tracking proved invaluable for one project that had been reactivated after a number of years. When one tribe read about this project in the newspaper, it complained to WSDOT that it had not been consulted on the project. However, the project team maintained a consultation tracking file for the project and recorded that the tribal administrator had declined to consult on the project. The project team had recorded the date and name of the administrator. The tribe, who had new staff, withdrew its complaint.
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Treaty Rights
How do I know if my project may affect a tribal treaty right?
As discussed in Chapter 2, most of the treaties signed by tribes in
Where can I get a copy of the treaties?
The Governor’s Office of Indian Affairs posts the 7 treaties signed in Washington on their website.
The Tribal Liaison Office encourages everyone to read the treaty applicable to your region. |
Washington State include the following article: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.”
The federal courts have re-affirmed many of these rights. With regard to treaty fishing rights, the courts determined that the right has two parts:
- Tribes have the right to take a “fair share” of fish passing through their Usual and Accustomed Areas. Currently, the courts have determined that a fair share is approximately 50 percent of the fish.
- Tribes have the right to fish in their Usual and Accustomed Grounds and Stations.
If your project has the potential to affect fisheries resources or displace tribal fishers, then the project will affect a treaty right. If your project is on federal or public lands, you also need to consider whether your project will impact gathering or hunting resources or access to those resources.
Still unresolved is the question of whether degrading habitat impacts a treaty right. The issue is currently being litigated. In August 2007, a US District Court issued a partial summary judgment limited to state-owned culverts. The ruling stated that “the right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest.” Hearings to determine the remedy for this will begin in September 2007. What this means for your project is that you may be forced to agree-to-disagree until the issue is settled. Though the state may not acknowledge habitat as a treaty right, you should still consult with the tribes on any habitat concerns they may have on your project. Consultation, however, is not a guarantee of outcomes or agreement. Contact the WSDOT Tribal Liaison Office if you need assistance consulting with a tribe on these issues.
Many of the treaties included a reserved right to hunt and gather in “open and unclaimed lands”. The geographic descriptions of these areas have yet to be determined. A tribal treaty gathering or hunting right is not limited to a tribe’s U&A. An example of an affect to a treaty gathering or hunting rights is if your project is located on public or federal lands and it would restrict access to a gathering site or prevent hunting. top
When and how should I start discussing the project’s potential impacts to treaty rights?
Environmental scoping. Discussions with tribes during scoping can help you identify treaty resources located within your proposed project area. Early consultation is your opportunity to explore project alternatives and modifications that will avoid or minimize impacts to treaty rights or treaty protected resources. You should let the tribe know that addressing potential impacts to treaty rights is one of your consultation goals.
Keep in mind that you will have to resolve any unavoidable impacts to treaty rights the project creates. This may include a monetary settlement. In some cases, resolving these issues has taken a year or more to negotiate. Your goal, though not always possible, is to resolve these issues before finalizing your NEPA review.
If your project has a high potential to impact a treaty right, you should meet with the Tribal Liaison and Office of the Attorney General to discuss your project’s specific consultation plan. top
How do I know when I have resolved potential impacts to treaty rights?
If your project has an impact to a court adjudicated treaty right, it may be necessary for FHWA / WSDOT to enter into a formal agreement with the tribe before federal agencies agree to release funding or issue permits for your project. top
What happens if my project does not resolve its impacts to tribal treaty rights in NEPA?
It may prevent FHWA from approving your NEPA document, because federal agencies have a trust responsibility to protect treaty rights. It may also prevent or delay other federal agencies from issuing you the permits your project may require.
The importance of tribal consultation is illustrated by the 1988 U.S. Court decision in Muckleshoot v. Hall, 698 F. Supp. 1504, 1511 (W.D. Wash. 1988). This case concerned a permit issued by the U.S. Army Corps of Engineers (“Corps”) under section 404 of the Clean Water Act for construction of a large new marina in Elliot Bay in a location that was within the U&A area for the Muckleshoot Tribe and where Tribal fishers actively fished. The Tribe challenged the permit, despite its various conditions designed to protect Tribal fishing opportunities in the vicinity of the proposed marina. In response to the litigation, the Corps withdrew the permit, sought further comments from the Tribe and issued a modified permit. The Tribe sued again, and – more than six years after the permitting process began – the federal district court forbade the Corps from granting the permit on the basis that the marina would interfere with the Tribe’s access to treaty-fishing areas.
Your goal is to identify and resolve the outstanding issues in order to enable the affected tribe(s) to “withhold objecting” to the issuance of federal permits or approvals required by the project. It may be necessary for FHWA / WSDOT to enter into a formal agreement with the tribe before federal agencies agree to release funding or issue permits for your project. top
What if some of the federally recognized tribes I’m consulting with on my project do not have court adjudicated treaty rights?
This distinction is important when your project has the potential to affect treaty rights. There are a few federally recognized tribes in Washington State who either never signed treaties and / or do not have off-reservation fishing rights. There are also a few federally recognized tribes whose claim of formal treaty rights have not been recognized by the federal courts.
If your project is located within a tribe’s consultation area, then you are required to engage in government-to-government consultation, regardless of whether the tribe has court adjudicated treaty rights or not. However, if your project has the potential to affect a tribal treaty right, you will likely need to engage the tribe(s) with treaty rights a focused, and often more frequent consultation to resolve those issues.
The main difference between consulting a federally recognized tribe that has treaty rights and a federally recognized tribe that doesn’t, is you are legally obligated to resolve a treaty effect the project has in order to receive the federal permits necessary for your project.
Natural resource managers representing federally recognized tribes without court adjudicated treaty rights should be consulted individually and not as a part of any multi-tribal meetings held for the purpose of addressing treaty rights. You will also need to consider the existence of legal rights, such as treaty rights, when weighing any conflicting tribal positions. top
Cultural Resources
This section is not intended to answer frequently asked questions about Section 106 of the National Historic Preservation Act or the Section 106 programmatic agreement between WSDOT / FHWA and DAHP. These laws and agreements contain detailed consultation requirements you must comply with on your project. For more specific information about cultural resource laws and regulations, please contact the WSDOT Cultural Resources Program in the Environmental Services Office.
Is Section 106 the only framework in which to evaluate and consider cultural resources?
No. Even non-Section 106 eligible cultural resources can be considered as part of the broader analysis of impacts to the human and natural environment as required under NEPA, and as a part of general government-to-government relations. Section 106 of the National Historic Preservation Act requires federal agencies to consider the effect of their actions on historic properties. The Section 106 implementing regulations (36 CFR Part 800) has very specific processes and criteria for the identification, evaluation and mitigation of resources that are determined eligible for listing in the National Register of Historic Places. Sometimes a cultural resource won’t meet any of these criteria, despite its importance to a tribe. For example, a previously disturbed archaeological site may not meet any of the Section 106 historic property or traditional cultural property eligibility criteria, but it can still have immense cultural value to a tribe. top
What are traditional cultural properties (TCP) and how do I work with tribes to identify them?
A traditional cultural property (TCP) can be defined generally as a site “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” (National Register Bulletin #38). Examples include places associated with the traditional beliefs of a tribe about its origins, its cultural history, or the nature of the world; as well as the places where tribes perform traditional religious ceremonies.
Since a TCP is unique to a given community, they are often the only ones who can identify these resources. TCPs should be identified and evaluated as part of a cultural resources survey. Due to their sensitivity, tribes may be reluctant to reveal specifics, including an exact location and meaning of the resource. You should work with the specialists from the WSDOT Cultural Resources Program and Tribal Liaison Office for further guidance if you encounter this issue on your project.
Some TCPs do not meet the strict eligibility criteria under Section 106 of the National Historic Preservation Act. However, you should still consult with the tribes about these resources under NEPA and government-to-government relations. top
What if a Tribe does not want to divulge information to agency officials regarding places of traditional religious and cultural significance?
Many tribes’ beliefs systems require that the location and even the existence of traditional religious and cultural properties not be divulged. It is vital that you work with Tribes to identify sensitive locations while respecting tribal desires to withhold specific information about these types of sites. Section 304 of the National Historic Preservation Act 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 Federal Agency as provided under Section 800.2(c)(2)(ii)(E) of the regulations. For additional guidance about confidentiality see National Register Bulletin 29, Guidelines for Restricting Information About Historic and Prehistoric Resources (order at: http://www.cr.nps.gov/nr/publications/bulletins.htm).
In Washington State, RCW 42.56.300 states that “Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites are exempt from disclosure under this chapter.” top
What is an Inadvertent Discovery Plan (IDP) and does my project need one?
Inadvertent Discovery Plans describe the laws, procedures and contact information needed for handling situations when a project inadvertently discovers archaeological resources or human skeletal remains. Cultural Resource surveys are conducted for many projects in part to minimize the chance of such inadvertent discoveries, but they still happen. You may not use an inadvertent discovery plan as a substitute for a cultural resources survey.
The WSDOT Cultural Resources Office has a standard plan or template you can use and / or amend as appropriate for your project. All projects that involve ground disturbance should have an inadvertent discovery plan in place before construction. Projects in or near known sensitive areas should have a plan in place for ground disturbing tests conducted for environmental analysis and engineering, such as geotechnical borings or potholing.
If your project will have an adverse effect on a historic property or if it is located in a sensitive area, you should consult with the affected tribes on the plan. top
What state and federal laws apply if human remains are found?
The State of Washington has a number of laws relating to human remains including the Indian Graves and Records (RCW 27.44) and Abandoned and Historic Cemeteries and Historic Graves (RCW 68.60). These laws provide specific protections and protocols which must be followed. Contact the WSDOT Cultural Resources Office for more information on these laws.
The Native American Graves Protection and Repatriation Act (NAGPRA) and the Archaeological Resources Protections Act (ARPA) only apply if your project is located on federal or tribal trust lands.
Contact the WSDOT Cultural Resources Office for more information on requirements associated with these laws. top
Can the consulting tribes curate artifacts recovered during the course of my project?
Yes, if they have a facility that meets the federal curation requirements (36 CFR 79). While none of the consulting tribes on the Granite Falls Alternate Route Project, had an eligible facility, the Memorandum of Agreement on the project included a provision stating that the artifacts would be temporarily curated “until the affected tribes reach a separate agreement concerning the repatriation of the recovered artifacts. Repatriated artifacts must remain in a facility that complies with the curation guidelines established in 36 CFR Part 79.” top
Intertribal Relations
It is important for project teams to recognize and respect the uniqueness of each tribe. An important principle is to never ask a tribal representative from one tribe a question regarding another tribe. For example, do not ask a tribal representative from the Tulalip Tribes if you should consult with the Swinomish Tribe, or what the Swinomish position on a project is, or what the their cultural practices of another tribe etc. Only a tribal representative can speak on behalf of their tribe. FHWA would never ask Oregon DOT to speak on behalf of WSDOT without WSDOT’s explicit authority to do so. top
Is it appropriate to invite multiple tribes to the same meeting?
It depends. If the meeting is tribal specific (i.e. not an agency scoping meeting), then you need to ask each tribe if their preference is for you to consult with them individually or if they would like to participate in multi-tribal consultation, or both.
This principle is true any time you have more than one tribe consulting on a project. For example, the Alaskan Way Viaduct and Seawall Replacement project hosted a successful and productive multi-tribal meeting. Later as the project sought to develop an Inadvertent Discovery Plan for testing in a sensitive area, some tribes preferred to consult individually with WSDOT.
It’s important for you to be flexible in your approach to consultation. You may need to use many different methods throughout NEPA review. top
Should I consult with non-federally recognized tribes the same way I consult with federally recognized tribes?
No. It is not considered formal government-to-government consultation.
You should work separately with non-federally recognized tribes as appropriate, under Section 106 of the National Historic Preservation act, or as an affected population for Environmental Justice. Non-federally recognized tribes should not be invited to agency scoping meetings or multi-tribal meetings with federally recognized tribes. top
What if a tribe wants to be designated a “lead tribe” or does not want WSDOT to consult with another tribe on the project?
WSDOT cannot designate a tribe as a “lead tribe” for consultation, nor can it exclude interested tribes from consulting. The laws and policies that require tribal consultation do not include such a designation. Any federally recognized tribe that has an interest in your project is entitled to the government-to-government consultation. The Advisory Council on Historic Preservation (ACHP) recently supported these statements; see Appendix K (pdf 10 kb) for a copy of the ACHP letter. You can consider and evaluate the respective tribal interests when weighing any conflicting tribal position.
However, it is acceptable for a tribe to defer to another tribe or designate another tribe as a “lead” for consultation. It is important for the consulting tribes to discuss and decide this amongst themselves. It is not appropriate for WSDOT to ask a tribe to defer to another tribe. If a tribe would like to defer consultation on your project, ask them to send you an email or letter for your records.
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Resolving tribal concerns
What if the tribe objects to a specific issue on my project?
You need to engage in good faith consultation with the tribe in an effort to resolve their concerns. Unfortunately, it is not always possible to reach agreement. Whenever you respond to a tribal concern, it is important that you explain your reasoning. This helps demonstrate that you fully considered their concerns, which is especially important if you cannot accommodate their request. In some cases, a tribe may “agree to disagree” with you on a particular issue. If you cannot reach a resolution or cannot “agree to disagree” on a particular issue, contact the WSDOT Tribal Liaison Office.
If you engage tribes in early, on-going and good-faith consultation, then it will be much easier to explain why you may not be able to accommodate a particular request. Regardless of how legitimate your reasons are, if you haven’t engaged the tribe in early, ongoing and good faith consultation, your explanation will be much harder to accept. top
What if different tribes have conflicting requests?
You should seek to foster a shared agreement amongst the involved tribes and WSDOT where possible through the use of clear, open communication. You also need to be sensitive to the differences among the tribes and the reasons for those differences. Where it appears that the differences may not be reconcilable, project managers should contact the WSDOT Tribal Liaison Office for assistance. top
Who should be involved in resolving conflicts?
You should first attempt to resolve any conflicts at the lowest staff level of the organization through consensus. You should consult or involve the Tribal Liaison and your FHWA Area Engineer in this process. Most project specific conflicts can be resolved at this level.
If you are unable to resolve the disagreement you may need to elevate the issue to decision makers as appropriate. This may include the Governor’s Office of Indian Affairs or State Historic Preservation Officer.
Tribal consultation agreements may include specific provisions for dispute resolution, as do some federal laws, including Section 106. top
How do I know when I’ve completed NEPA stage consultation?
There are three ways to determine if you have completed consultation with the tribe:
- The tribe does not have any objections and declines any further consultation on your project.
- You reach a formal agreement with the tribe on your project.
- You have engaged in good faith consultation throughout the environmental review stage, and in the case of disagreement, you have provided a reasonable explanation for your position. top
Tribal Compensation
Can I compensate a tribe for providing a service for my project?
Maybe. If you want to use federal funds for compensation, then you must get approval from FHWA. It is generally acceptable to compensate a tribe for services they may provide, similar to any contractor, provided the tribe meets any applicable requirements. These services could include the preparation of a discipline report, providing data etc. See appendix L for examples of tribal services agreements. top
Can I compensate a tribe for consulting (staff time, review, response etc) on my project?
WSDOT is developing guidance on the use project funds to compensate tribes for consultation (staff time, travel, per diem, etc). Contact the WSDOT Tribal Liaison Office to check the status of this effort. top
Permitting
This section relates to the permitting phase of a project, which occurs after the NEPA process is completed. Tribes are interested in the permitting phase of projects because of how the specific conditions will relate to their interests.
Who is responsible for consulting with tribes on project permits?
As a general principle, it is the responsibility of the entity that authorizes an action to consult with tribes. The federal trust responsibility (see chapter 2) is a major foundation for most consultation requirements. This trust responsibility requires federal agencies to protect tribal treaty rights and consult with tribes on any actions that affect their interests.
For example, the US Fish and Wildlife Service (USFWS) and the National Marine Fisheries Service (NMFS) are subject to Secretarial Order 3206: American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act. The Order includes an appendix of procedures to implement the order. Under the Order, Interagency Cooperation, commonly referred to as Section 7 consultation, requires these Services to “provide timely notification to affected tribes as soon as the Services are aware that the proposed federal agency action subject to formal consultation may affect tribal rights or tribal trust resources.” Secretarial Order 3206 Sec. 3(c)(1). The Services are required to notify tribes of the proposed action, provide copies of biological opinions and provide a written determination that describes how the “selected alternative is consistent with their trust responsibilities, and the extent to which tribal conservation and management plans for affected tribal trust resources can be incorporated into any such alternative.” Secretarial Order 3206 Sec. 3(c)(2)(d) top
How can I ensure that WSDOT and federal permitting agency’s consultation efforts are coordinated and effective?
Much of the documentation needed for permit approvals is prepared as part of the NEPA environmental review process. Early in project design, permit requirements are often discussed and negotiated with regulating agencies, though formal applications for permits are submitted after completing the NEPA process. You should involve affected tribes in these discussions.
Ask the permitting agencies how and when they plan to consult with the tribes on permits. Discuss how these agencies might coordinate with you on their consultation efforts.
Keep in mind that some permits have strict timelines from application to approval. In some cases, the permitting agency will not initiate consultation with the tribes until the permit application is formally submitted. Project teams are encouraged to proactively include affected tribes in any pre-application meetings as well as share technical documents. Each time new information relevant to the permit becomes available, the tribes may have comments / concerns. Do not assume that if they agreed to, or did not object to one aspect or condition of the permit, that the same will be true for other conditions or other permits. top
Resources to help you
Below is a list of WSDOT staff that can provide assistance on your project. Updated contact information is available on the Tribal Liaison webpage: www.wsdot.wa.gov/tribal
Tribal Liaison
The Tribal Liaison is located in the Government Relations Office and provides executive level, agency wide Liaison support on all issue areas.
It’s important for the WSDOT Tribal Liaison to have a general awareness of the tribal consultation occurring on WSDOT projects. You should involve the Liaison if you need assistance, if conflicts arise on your project, or if questions or issues arise related to tribal policy. Any formal meetings or presentations with tribal leadership should also include the Liaison. top
Environmental Services Tribal Liaison
The Environmental Services Tribal Liaison specializes in tribal natural and cultural resource issues. This position provides policy and technical support to projects.
It’s important for the ESO Tribal Liaison to have a general awareness of the natural and cultural resource tribal consultation occurring on WSDOT projects. You should involve this Liaison if you need assistance on natural or cultural resource issues, if conflicts arise on your project, or if questions or issues arise related to tribal policy. top
Tribal Liaisons in Regions & Modes
The Washington State Ferries Office, Southwest Region and Eastern Region each have full-time Tribal Liaisons to support their region. These will be your first point of contact for tribal issues. The statewide Tribal Liaisons from Headquarters can assist when needed. top
Regional Tribal Coordinators
Each WSDOT region has a designated Tribal Coordinator who, in addition to their regular duties, serves as a local point of contact in the region for tribes. For example, if a tribe wanted to know who to contact about a specific project, the regional tribal coordinator can provide that information. Questions or concerns on how to consult with tribes should be directed to the appropriate Tribal Liaison. top
Cultural Resources Office
The Cultural Resources Office is part of the Environmental Services Office at WSDOT Headquarters. The cultural resources staff reviews projects to ensure they are in compliance with Section 106 of the National Historic Preservation Act, and other federal and state cultural resources laws. Technical questions, such as how to define the Area of Potential Effects or consultation with the Department of Archaeology and Historic Preservation should be directed to the Cultural Resources Office. Questions on how to consult with tribes should be directed to the appropriate Tribal Liaison. In some cases, it may be necessary to contact both offices for assistance on your issue. For example, if your project requires a Memorandum of Agreement under Section 106, you must work with a Cultural Resources Specialist. If the MOA involves tribal resources, the project, cultural resource specialist or tribe can request the Tribal Liaison to get involved. top