ADOT&PF Tribal Consultation Training

1. ADOT&PF Tribal Consultation Training OBJECTIVES • Learn why and when tribal consultation is required as well as the types of consultation • Be able to differentiate between a tribal government, an Alaska Native Corporation (ANC) and a 93-638 contracting agency • Understand how to effectively implement tribal consultation

2. Tribal Consultation Alaska TRIBES… • Expect and have a right to Government-to-Government communication • Are sovereign governments - enjoy higher level of governmental independence than do states or local governments • Have a government to government relationship, not racial relationship with the United State and State governments • Still exist. Alaska Native Claims Settlement Act (ANCSA) did not eliminate tribal governments in Alaska, only settled the Aboriginal Title to land (the land claims) • Value listening more than talking

4. Unique Characteristics of Tribes in Alaska • Most exist as governments without a specific land base – the Reservation System present in the Lower 48 is not present in Alaska • Alaska’s only exception Metlakatla/Annette Island Indian Reservation located in Southeast Alaska • Despite the lack of a specific land base, Alaska’s tribal governments have all the authority of other Native American tribal governments • ANCSA and the lack of a land base for Alaska’s tribes has created many challenges for agencies working in tribal communities – the reservation model of tribal relations • ANCSA land is not an Indian Reservation because tribal governments control reservations. ANCSA lands are corporate lands owned and controlled by Alaska State Corporations

5. Tribal Consultation • Executive Order 13175 direction on tribal consultation - Section 5 specifically • USDOT Order 5301.1 offers directions on working with American Indian and Alaska Native tribes

6. Tribal Consultation ANCS… • …are a creation of Congress to settle Aboriginal title to Alaska in 1971, the Alaska Native Claims Settlement Act (ANCSA) • …received land and money from the US government to settle title to Alaska* • …are “for profit” corporations registered in the State of Alaska* • …are not sovereign governments and should never be confused with tribal governments • …may require consultation under some circumstances * - the 13th regional corporation is registered in Washington State and did not receive land from Congress

7. Tribal Consultation 93-638 Contracting or Compacting Agencies… • Provided for under the Indian Self-Determination and Education Assistance Act (93-638). Also defines ANCs as tribes solely for the purposes of one chapter of this act. • Provide services to tribal governments (operating usually as a consortium such as Tanana Chiefs Conference and Association of Village Council Presidents, but can be a tribal government or an ANC) • May or may not be tribes or sovereign governments, but may represent their interests in some matters • May enjoy consultation rights, with the knowledge, consent and participation of the tribe(s) they represent

8. Comparison of Tribal Governments, ANCs and Contractors (93-638)

9. Tribal Consultation • Types of Consultation required – • Government to Government • Environmental Justice (EJ) (EO 12898) Information gathering • Archeological, Historical and Cultural considerations, Section 106 of National Historic Preservation Act (NHPA) • Planning (23 USC 134 & 135)

10. Tribal Consultation • Government to Government • It is a sign of respect that acknowledges the tribe as a sovereign • Required under Executive Order 13175 and ADOT&PF Policy & Procedure 01.03.010 • Must be a complete disclosure of known project information • Consultation does not require compliance with tribal concerns if development determination warrants another solution. The concerns should be documented and addressed.

11. Tribal Consultation • Government to Government (continued) • Section 161 in the 2004 Omnibus Bill passed by Congress directed the Federal Office of Management & Budget to consult with Alaska Native Regional and Village Corporations (ANCs) in the same manner prescribed for tribes in EO 13175 • This does not convey sovereign government status to ANCs, as Alaska tribes enjoy • Nothing in this legislation directs State DOTs to initiate consultation with ANCs, but this is anticipated. ANCs should continue to be consulted as appropriate, especially when there are issues involving ANC land

12. Tribal Consultation • EJ Information Gathering • Based on current demographics • Based on cultural data (which probably includes subsistence sites, traditional use areas, etc) gathered from tribal members • Understanding of the culture is key to accurate EJ information gathering • EJ Information is used to determine where there may be disproportionately adverse impacts on low income populations and minority populations

13. Cultural Places and Trails Used for Subsistence

14. Tribal Consultation • Archeological, Historical and Cultural considerations (section 106 of NHPA & 36 CFR 800) • This a responsibility of federal agencies such as FHWA Alaska Division – the State of Alaska can not initiate • Will include historic and cultural sites that may or may not be on State Historic Preservation Office’s (SHPO) inventory • Tribal members from the area may be the best source of historic and cultural site information (based on oral tradition)

15. Tribal ConsultationPlanning (23 USC 134) • (4) Recipients of other assistance.--The Secretary shall encourage each metropolitan planning organization to coordinate, to the maximum extent practicable, the design and delivery of transportation services within the metropolitan planning area that are provided-- (A) by recipients of assistance under chapter 53 of title 49; and (B) by governmental agencies and nonprofit organizations (including representatives of the agencies and organizations) that receive Federal assistance from a source other than the Department of Transportation to provide nonemergency transportation services.

16. Tribal ConsultationPlanning (23 USC 135) • d) Additional Requirements.--In carrying out planning under this section, each State shall, at a minimum, consider … • (3) coordination of transportation plans, programs, and planning activities with related planning activities being carried out outside of metropolitan planning areas.

17. Tribal ConsultationPlanning (23 USC 135) • (e) Long-Range Transportation Plan.– • Development.--Each State shall develop a long-range transportation plan, with a minimum 20-year forecast period, for all areas of the State, that provides for the development and implementation of the intermodal transportation system of the State. • (2) Consultation with governments … • (C) Indian tribal areas.--With respect to each area of the State under the jurisdiction of an Indian tribal government, the long-range transportation plan shall be developed in consultation with the tribal government and the Secretary of the Interior.

18. Tribal ConsultationPlanning (23 USC 135) • (f) State Transportation Improvement Program.– • Development.– • (A) In general.--Each State shall develop a transportation improvement program for all areas of the State. • (B) Consultation with governments … • (iii) Indian tribal areas.--With respect to each area of the State under the jurisdiction of an Indian tribal government, the program shall be developed in consultation with the tribal government and the Secretary of the Interior.

19. State DOT Consultation Resource

20. Alaska Recognition of Tribal Governments • The Millennium Agreement and Alaska Administrative Order 186 recognized 229 tribal governments in Alaska (562 tribes recognized in all of the USA) • Consultation is required only with federally recognized tribes

21. Tribal Information List of recognized tribes may be obtained from: • Bureau of Indian Affairs, Alaska Region in Juneau – Federal Building, 709 West 9th St, 3rd floor – 1 800 645 8397 • The Alaska Tribal Technical Assistance Program (TTAP) Officehttp://www.cbpa.ewu.edu/%7ELTAP/ • Civil Rights Office web site http://www.dot.state.ak.us/cvlrts/

22. ADOT&PF Policy & Procedure 01.03.010 PURPOSE This policy reinforces government-to-government relationships between the Department of Transportation and Public Facilities (Department) and the tribes in Alaska through consultation on significant matters of mutual concern. This policy provides guidance to all employees of the Department involved in any departmental action(s) that significantly or uniquely affect a tribe in Alaska, and pertaining to any tribal action that significantly or uniquely affects this Department. It also reinforces the foundation for establishing and maintaining effective government-to-government communications between the Department and the tribes in Alaska, and promotes consultation and coordination with these tribes, with the goal of ensuring that the Department conducts consultation in a culturally sensitive manner.

23. ADOT&PF Policy & Procedure 01.03.010 POLICY The Department is committed to consulting with tribes in Alaska as early in the Department’s decision-making process as practicable, and as permitted by law, prior to taking action or undertaking activities that significantly or uniquely affect a tribe. Department actions shall favor maximum participation of the affected tribe(s), with the goal of achieving informed decision-making through mutual consultation.

24. Additional Alaska Tribal Resources

25. FHWA site on historic preservation & archaeology http://environment.fhwa.dot.gov/histpres/index.htm

26. FHWA site on Native American Coordination http://www.fhwa.dot.gov/hep/tribaltrans/index.htm

27. A Look at ADOT&PF Tribal Relations – AMATS Q&A Q-How are Indian tribal governments and related public agencies involved in the development of transportation plans and programs?

28. A Look at ADOT&PF Tribal Relations – AMATS Q&A A–”There are two recognized tribal entities in Anchorage: Cook Inlet Tribal Council (CITC) and Eklutna Native Village. They are included in planning the same way as all other groups nominations are sent to an extensive mailing list. The AMATS agendas are advertised and can be accessed via the Internet. A review of our email list notes that Eklutna Corp. is on our list.”

29. A Look at ADOT&PF Tribal Relations – AMATS Q&A “The relationship between these native groups and AMATS is not the same as with tribes in the Lower 48 because of the corporate structure established by the Alaska Native Claims Settlement Act (ANCSA). Both organizations are arms of their respective Native Corporations and politically function as a part of the Municipality of Anchorage government. Cook Inlet Regional Corporation (CIRI) provides tribal authority to CITC and CITC operates as the social services arm of CIRI. They do not consider themselves a separate governmental unit from the Municipality.”

30. A Look at ADOT&PF Tribal Relations – AMATS Q&A “Further, Anchorage has a strong Community Council public outreach component. The Community Councils are where the grass roots level of public involvement is found. Many elected officials started out as Community Council presidents. Consequently, there is heavy involvement with Community Councils during the project nomination cycles as well as project development processes. Local native populations participate in their neighborhood Community Councils.”

31. A Look at ADOT&PF Tribal Relations – AMATS Q&A • What are the pertinent issues in this example? • Name the tribal government, the ANC and the 638 Contracting Agency. How would you find out? • Are tribal governments political subdivisions of municipal governments? • Is this effective tribal consultation?

32. Another Look at ADOT&PF Tribal Relations – Sitka Airport Repatriation of Human Remains • Project to upgrade airport in Sitka involved destruction of concrete fortification built in World War II • Members of the Sitka Tribe discovered 114 sets of human remains in these fortifications placed there as a result of tuberculosis outbreak and deaths in the 1940’ & 50’s, patients at the Mt. Edgecumbe Indian Health Service Hospital • Airport Expansion Plan called for relocation of the human remains to the community of origins, ranging from Ketchikan to Barrow

33. Another Look at ADOT&PF Tribal Relations – Sitka Airport Repatriation of Human Remains • Working cooperatively with the Sitka Tribe and FAA, department ROW staff contacted relatives of the people buried in these fortifications to arrange for their internment • The Sitka Tribe provided research and cultural understanding so that these human remains could return to their community with respect and dignity

34. Another Look at ADOT&PF Tribal Relations – Sitka Airport Repatriation of Human Remains Key points • Department ROW Section worked cooperatively with the Sitka Tribe on this project • Process for removal of the human remains demonstrated respect for the local tribe and respect for the Alaska Native communities that received the remains • Job well done … everyone involved found the experience very rewarding

35. Alaska Tribal Government Trivia Question • Name the only two Federally recognized regional Alaska tribes?

36. Contact information: State of Alaska Department of Transportation & Public Facilities Civil Rights Office 2200 East 42nd Avenue PO Box 196900 Anchorage, AK 99519-6900 telephone (907) 269-0851 fax (907) 269-0847