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Tribal Consultation Programmatic Agreement

Among the NDDOT; ND Division of FHWA; Fort Peck Assiniboine & Sioux Tribes; Turtle Mountain Band of Chippewa Indians; Mandan, Hidatsa, Arikara Nation; Spirit Lake Dakotah Nation; Sisseton-Wahpeton Oyate; Standing Rock Sioux Tribe; Northern Cheyenne Tribe; Crow Tribe (Apsaalooke Nation); and Lower Sioux Indian Community.


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Internal Issues

Upper Management Presentation

to

NDDOT and ND Division of FHWA


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Tribal Consultation Initial Steps

Visits to Reservations

Project Consultations – Field Reviews


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Jamestown Bypass Field Review And Consultation Meeting

Consultation with Spirit Lake Dakotah Nation, Sisseton-Wahpeton Oyate, Standing Rock Sioux Tribe.


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Highway 2 Field Review

Consultation with Ron LittleOwl – Three Affiliated Tribes and Standing Rock Sioux Tribe


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Programmatic Agreement

Beginning Efforts

Turtle Mountain Band of Chippewa Indians

Initial Try at PA was abandoned – Conflict over Tribal Monitors

A few years later we renewed our efforts

Went to each Reservation

Asked what they envisioned

I wrote a first attempt based upon what we heard


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Initial Meeting at each Reservation

  • Discuss the types of projects we undertake, our varying levels of involvement, typical impacts, and typical cultural resource section involvement.

  • The STIP

  • Highways: adding lanes, city bypass, regrade, surfacing with safety work, grade raise, guardrail, bridge replacement, signing.

  • Counties: widening, regrade, new routes, guardrail, bridge replacement, signing.

  • Cities: widening, new streets, bridge replacements, lighting, signing.

  • TE: bike paths (city and rural), rest areas, interpretive displays, tree planting, scenic byways/backways.

  • Material Source Areas


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Initial Meeting at each Reservation

  • Discuss the laws, and regulations detailing mandated consultation relative to cultural resource issues for Federal Highway undertakings.

  • Native American Graves Potection and Repatriation Act, ND State Burial Law, National Historic Preservation Act, National Environmental Policy Act

  • Most NDDOT projects take place off Federal and Tribal lands. As a result, NAGPRA is not an issue or guiding law/regulation for Native American consultation on NDDOT projects. While NEPA has provisions for public involvement it does not specify Native American consultation. We are initiating the consultation process under NHPA.


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Initial Meeting at each Reservation

  • Issues that need resolution:

  • What tribes should the NDDOT and FHWA consult with?

  • Does each tribe want to be contacted for projects in all of North Dakota, or are there portions of the state we can exclude for specific tribes?

  • Are there types of projects we can exclude from consultation at the project level and consult only if we identify cultural resources and have the potential to affect them?

  • How does each tribe wish us to consult? The regulations provide for consultation at specific points throughout the Section 106 process, but do not stipulate methods of consultation.

  • Do we want agreements reached today formalized in a Programmatic Agreement - formal document specified under the NHPA?

  • Who is our consultation contact with each tribe? Should we pursue other interested parties within the tribe or should all contact be through the designated tribal official?

  • Do you also want to continue to receive NEPA Solicitation of Views letters for all projects? Some projects?


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Programmatic Agreement

Meetings to Finalize the PA

November 2005

April 2006

Signing Ceremony November 2006


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Reworking Previous Draft of the Programmatic Agreement April 2006 Meeting

Back row - Calvin Grinnell (MHAN), Conrad Fisher (N Cheyenne), George Reed, Jr. (Crow), Kent Good (KGA – Consultant), Brady Grant (TMBCI), Byron Olson (SRTHPO – Archaeologist), Greg Wermers (NDDOT), Front row – Elgin CrowsBreast (MHAN), Dianne Desrosiers (SW Oyate), Jeani Borchert (NDDOT), Mark Schrader (FHWA), Frankie Jackson (SW Oyate), and Bob Christensen (NDDOT).



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Programmatic Agreement

The Signing Ceremony


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Signing CeremonyNovember 2006

Tribes Represented:

  • Spirit Lake Dakotah Nation

  • Standing Rock Sioux Tribe

  • Three Affiliated Tribes

  • Turtle Mountain Band of Chippewa Indians

  • Sissteon-Wahpeton Oyate

  • Lower Sioux Indian Community

  • Northern Cheyenne

  • Crow

  • Fort Peck Assiniboine and Sioux Tribes


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Signing CeremonyNovember 2006

All Nations Drum Group

Redrock Drum Group


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Signing CeremonyNovember 2006

Ambrose Littleghost, Spirit Lake

Conrad Fisher, Northern Cheyenne


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Signing CeremonyNovember 2006

Curley Youpee, Fort Peck

Franky Jackson, Sissteon-Wahpeton


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Signing CeremonyNovember 2006

Elgin CrowsBreast, Three Affiliated


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Programmatic Agreement

Just what does it do?

http://www.fhwa.dot.gov/resourcecenter/teams/environment/tribal_consult.pdf


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The Programmatic AgreementMain Points

  • Working as a group – 9 Reservations

  • Acknowledges the joint commitment of the FHWA, the NDDOT and the Tribes to establish a relationship of mutual trust and respect

  • Acknowledges that we all aspire to engage in meaningful, long-term planning for the appropriate consideration of cultural resources important to the tribes

  • Includes a list of project types excluded from consultation


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The Programmatic AgreementNuts and Bolts

  • We have formed a Tribal Consultation Committee to meet at least 2 times during the year

  • The Committee will consist of 2 members from each reservation, at least one from the NDDOT, and one from FHWA Division Office

  • We will use the STIP in our meetings as part of efforts to notify them of upcoming projects

  • We will provide them a packet of information for projects we will be working on in the near future to include maps, aerial coverage, or other pertinent illustrations

  • The NDDOT will provide the Committee an explanation of decisions reached in regard to project effects on cultural resources of concern to the Committee


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The Programmatic AgreementNuts and Bolts

  • The NDDOT will continue to meet with the Tribes at each Committee member’s individual office at least once per year

  • The FHWA and NDDOT acknowledge the need for confidentiality of certain tribal spiritual and cultural information that may be provided during the course of tribal consultation

  • The NDDOT will host the meetings and will pay for up to two representatives from each participating reservation to attend (payment currently includes travel expenses, motels rooms, per diem, and a $300 fee)


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The Programmatic AgreementNDDOT Mission Statement

  • Acknowledges the NDDOT’s commitment to the design and construction of a transportation system that

  • 1) safely moves people and goods;

  • 2) avoids, minimizes, and mitigates adverse effects on cultural resources;

  • 3) recognizes that consideration of tribal interest in preservation of significant cultural resources is important to Tribal well-being, growth, and prosperity; and

  • 4) responds to the needs of North Dakota communities and the Tribes.


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Implementing the PA

  • The PA has been in use for 1.5 years

  • The Committee has reviewed projects from the STIP level through Section 106 and NEPA compliance

  • The Committee has taken bus trips to view specific project areas

  • The Committee has conducted Sensitivity Training for NDDOT archaeological consultants

  • The Committee is currently functioning as a Participating Agency through the NEPA process on a proposed new county road through the badlands of western North Dakota

  • The Committee is working to get approval to implement a program of Tribal Monitors at the identification stage


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Ongoing Issues

  • Confidentiality of Information

  • Funding – financial rules (Federal and State) that impede effective consultation

    • Meetings

    • Food

    • Tobacco

    • Gifts


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