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Developing and Improving Tribal Consultation
Procedures
Next Steps
Early and consistent consultation with Native
American Tribes is a crucial step for transportation
planning, construction, and maintenance activities.
By bringing Tribal Liaisons to the table, the
Transportation Permit Efficiency and Accountability
Committee (TPEAC)
provided a forum for educating participants about
tribal perspectives, rights, and concerns. However,
there is more work to be done. There is a strong
need to better incorporate tribal perspectives and
expertise into transportation planning and
permitting. Continued educational efforts are
imperative to accomplishing this goal. Further,
efforts to establish collaborative working
relationships between and among tribes and state and
local
agencies must be ongoing.
The work of the Washington State Department of
Transportation (WSDOT) Environmental Tribal Liaisons
and TPEAC’s Tribal Liaisons to develop consultation
protocols with each of the tribes in Washington is
critical to implementing direct and effective
government-to-government relations between tribes
and WSDOT. This important first step will provide a
framework for consultation, but education,
communication, and funding are necessary to ensure
full implementation of these procedures. Further,
the need to move forward with positive and
constructive relationships with tribes exists in all
areas of state and local government. Tribes and
state and local agencies would all benefit from
clearly identified position-specific single points
of contact.
TPEAC encourages WSDOT and the Governor’s Office of
Regulatory Assistance (ORA) to continue to define,
advance, and model best practices for
government-to-government relations. TPEAC is
confident that with continued leadership, focus, and
attention, a new standard can be set for
government-to-government relations with Native
American Tribes, and that the best practices defined
for WSDOT projects will come to set a new norm for
government-to-government relations in Washington.
Accordingly, TPEAC believes the following are
important next steps to this end:
- Develop a Model NEPA Tribal Consultation
Process:
WSDOT Environmental Tribal Liaisons
and TPEAC Tribal Liaisons should continue to
work with tribes and WSDOT staff and mangers to
develop a model NEPA tribal consultation
process.
- Develop and Implement Training Programs for
WSDOT Staff and Managers:
In coordination with
the Governor’s Office of Indian Affairs, WSDOT
should develop a training program for WSDOT
staff and managers to facilitate implementation
of the aforementioned model NEPA tribal
consultation process. Such a training program
should also be made available to staff and
managers from environmental and natural resource
agencies. This could also be expanded to
include training opportunities for key local
government staff through the Washington State
Association of Counties, Association of
Washington Cities, County Road Administration
Board and Transportation Improvement Board.
- Extend Contract of TPEAC Tribal Liaisons:
With renewed contract funding by the 2006
Legislature, the TPEAC Tribal Liaisons should
continue to maintain a sustained and
concentrated focus on:
- Implementation of the Model NEPA Tribal
Consultation Process (as described above);
- Implementation of specific action items from
other TPEAC subcommittees and efforts (e.g.,
Watershed Subcommittee, web-based permitting
pilots, etc.); and
- Continuation of consultation awareness
education and the establishment of collaborative
and sustained working relationships.
Washington is home to 29 federally recognized
tribes, each a sovereign nation with rights to and
interests in natural and cultural resources within
the state. In addition, four tribes with
reservations outside of the state have treaty usual
and accustomed areas and resources within the state.
The development and maintenance of roads, bridges,
and highways has the potential to impact areas and
resources of cultural, environmental, or historical
interest to tribes. Under the 1989 Centennial
Accord, each state agency is mandated to have a
procedure to implement effective
government-to-government relations with the tribes.
The 1999 New Millennium Agreement reaffirmed the
commitments of the Centennial Accord and emphasized
the need to develop consultation processes to ensure
that government-to-government relationships are
institutionalized.
When TPEAC was created in 2001, Native American
Tribal Governments were included among the
stakeholders to be represented within the Committee.
The enacting legislation specified that two of
TPEAC’s eight non-voting members be designated by
the Columbia River Inter-Tribal Fish Commission and
the Northwest Indian Fisheries Commission. Within
the first few TPEAC meetings, a third position was
funded to include a representative from the Upper
Columbia United Tribes.
Recognizing the need to have tribal perspectives at
the table was an important first step, providing a
forum for exchanging information about tribal
government, rights, and responsibilities as related
to transportation projects. However, there were
factors that limited the ability of the
‘representatives’ to participate fully in the TPEAC
process:
- Representation: Because of the
number of tribes with rights to and interests in
cultural and natural resources in Washington
State, it was not feasible to include
representatives from each tribe within TPEAC.
However, because each tribe is a unique
government organization with different
management and decision-making structures,
TPEAC’s three tribal members could not act as
tribal representatives; rather, they served to
disseminate information from the TPEAC process
to individual tribal governments.
- Meeting logistics:
Meeting location and frequency also limited the
extent of tribal participation, as resources
simply were not available to send
representatives to monthly meetings around the
state.
In 2001, the State’s Department of
Transportation (WSDOT) established a Tribal
Liaison Office with the responsibility of
assisting tribes and WSDOT with implementing
effective government-to-government relations. As
mandated by the Centennial Accord, WSDOT
developed a Centennial Accord Plan in 2003,
which includes the WSDOT Tribal Consultation
Policy, a Dispute Resolution Policy, and
detailed descriptions of the programs, services,
and funding each of the WSDOT divisions and
offices offer to the tribes. In July 2005, WSDOT
created a project position for a Tribal Liaison
located in the Environmental Services Office to
focus on consultation improvements.
In 2004, the Legislature passed a
budget proviso (chapter 313, Laws of 2005, section 706, lines
15-24) directing TPEAC to
develop a process for ensuring tribal
consultation under the National Environmental
Policy Act (NEPA). Pursuant to this directive,
funding has been provided for the following
efforts:
- The Tulalip Tribes: The Tulalip Tribes
proposed to develop a model consultation process
under NEPA for the preservation of cultural,
historical, and environmental resources tailored
to their consultation interests. Their proposed
consultation protocols may serve as a model
other tribes may use. The Tribe dedicated
$90,000 to accomplish this goal and received
$50,000 in matching funds from TPEAC. The tribe
submitted a working draft in June 2005 that is
currently under review.
- Washington State Department of Transportation
(WSDOT): Concurrently, WSDOT Environmental
Tribal Liaison staff initiated a statewide
effort to meet the proviso language to improve
and clarify WSDOT’s internal processes. Since
April 2005, WSDOT and TPEAC’s Tribal Liaisons,
along with appropriate WSDOT regional
representatives, met with 27 of 29 federally
recognized tribes in Washington. Representatives
from each tribe’s planning, natural resources,
and cultural departments attended these
meetings. Based on the feedback from these
meetings, WSDOT staff has prepared twelve
preliminary recommendations for improving
WSDOT’s internal consultation procedures. These
recommendations focus on consultation
efficiency, compliance and a common
understanding and expectations for the
consultation process. WSDOT is currently seeking
comments from tribes, WSDOT region and environmental managers on the preliminary
recommendations. The final product will be
improved NEPA tribal consultation guidance in
the department’s manual and the Centennial
Accord Plan. WSDOT staff will develop an
aggressive training program to help staff
implement the new process.
- Watershed Subcommittee: The TPEAC Watershed
Subcommittee included the following action item
in their Road Map to Integrating Watershed-Based
Tools and Concepts into Existing Policies and
Procedures Report: Action Item #11—Include
tribal priorities, restoration opportunities and
objectives, and other information into local,
state, or regional restoration datasets.
Additional Resources
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