Tribal Consultation Programmatic Agreement

1. 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.

2. Internal Issues Upper Management Presentation to NDDOT and ND Division of FHWA

3. Tribal Consultation Initial Steps Visits to Reservations Project Consultations – Field Reviews

4. Jamestown Bypass Field Review And Consultation Meeting Consultation with Spirit Lake Dakotah Nation, Sisseton-Wahpeton Oyate, Standing Rock Sioux Tribe.

5. Highway 2 Field Review Consultation with Ron LittleOwl – Three Affiliated Tribes and Standing Rock Sioux Tribe

6. 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

7. 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

8. 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.

9. 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?

10. Programmatic Agreement Meetings to Finalize the PA November 2005 April 2006 Signing Ceremony November 2006

11. 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).

12. Working Through Issues

13. Programmatic Agreement The Signing Ceremony

14. 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

15. Signing CeremonyNovember 2006 All Nations Drum Group Redrock Drum Group

16. Signing CeremonyNovember 2006 Ambrose Littleghost, Spirit Lake Conrad Fisher, Northern Cheyenne

17. Signing CeremonyNovember 2006 Curley Youpee, Fort Peck Franky Jackson, Sissteon-Wahpeton

18. Signing CeremonyNovember 2006 Elgin CrowsBreast, Three Affiliated

19. Programmatic Agreement Just what does it do? http://www.fhwa.dot.gov/resourcecenter/teams/environment/tribal_consult.pdf

20. 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

21. 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

22. 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)

23. 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.

24. 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

25. Ongoing Issues • Confidentiality of Information • Funding – financial rules (Federal and State) that impede effective consultation • Meetings • Food • Tobacco • Gifts