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Section 106 Tribal Consultation

Environmental Services first Tribal Consultation held in 2016 at Newark Earthworks

ODOT's Environmental Services first Tribal Consultation held in 2016 at Newark Earthworks.

In accordance with 36 CFR 800, federal agencies must consult with federally recognized Indian Tribes that attach religious and cultural significance to historic properties that may be affected by an undertaking.  While there are currently no tribal lands in Ohio, FHWA/ODOT consults with several tribes that have ancestral ties to the area.  Tribal consultation is a federal government-to-government relationship. It cannot be delegated by a federal agency (FHWA in our case) to a state or local agency. ODOT performs project-level tribal consultation on behalf of FHWA. This includes consultation for LPA projects that receive FHWA funding.  However, the tribes have the option to work directly with the FHWA division office if they choose. OES has upgraded the EnviroNet system to provide the federally recognized tribes with whom we consult an opportunity to participate in project development. The system allows each tribe the ability to customize their profile so they receive information at the point in the process they choose. It is important to note that tribes have 30 days to review and comment on an action once they have been notified. This review period is non-negotiable. While SHPO may have 15 days to review a submittal under our Section 106 Programmatic Agreement, the tribes still have 30 days. Therefore, this is an important consideration when determining the project schedule.  Generally, tribes are automatically notified by EnviroNet when there is documentation for them to review. However, all direct project consultation is conducted by OES Cultural Resources Staff on behalf of FHWA. LPAs, consultants, and ODOT district staff shall not contact federally recognized tribes on ODOT/FHWA’s behalf. 

What You Need to Know

Why do we consult with Native American Indian Tribes?

  • Federally recognized Native American Indian Tribes (Tribes) are considered sovereign nations and therefore, are afforded a government-to-government relationship with U.S. governmental agencies. This means that the federal responsibility to consult cannot be delegated to State or Local agencies.
  • For Federal Highway Administration (FHWA)-funded projects, FHWA is responsible for tribal consultation.
  • Consultation requirements are established in Section 106 of the National Historic Preservation Act of 1966 (36 CFR Part 800).
  • ODOT coordinates project information with the Tribes on behalf of FHWA.

With whom do we consult?

  • Currently, ODOT coordinates with 19 Federally Recognized Tribal Governments that have historic or ancestral interest in Ohio.

What do we consult about?

  • ODOT consults on historic properties of cultural significance to the Tribes like:
    • Archaeological sites, burials, cemeteries, traditional cultural landscapes, ceremonial areas, and plant and animal communities.

When do we consult?

  • ODOT consults on federal-aid projects when the project could affect historic properties of tribal religious or cultural significance. 
    • Projects could include ground disturbance, new construction in undeveloped areas, introduction of visible, audible, or atmospheric changes, and transfer in ownership.
  • The timing of consultation is dependent on the Tribe’s preference but generally occurs when ODOT consults with the State Historic Preservation Office on the project’s effects. 

How do we consult?

  • For FHWA/ODOT, project-level consultation begins with our EnviroNet environmental documentation system. 
  • Each Tribe has a system profile that they can customize based on their preference (geographical area, types of sites, and points in the PDP and Section 106 process). 
  • Once notified, Tribes are provided 30 days to review and comment, per 36 CFR 800.
  • Consultation is not just for projects. FHWA and ODOT consult with tribes throughout the year regarding our program and host an annual Tribal Nations Conference with the Ohio History Connection.

What does this mean for your project?

  • Most of ODOT’s LPA-sponsored projects will not be of concern to the Tribes. However, they have the right to make comments on any federal-aid project.
  • EnviroNet has the 30-day review period built into the system. 
  • The Environmental Document cannot be approved before that 30-day review period has expired. 
  • Therefore, it is important to be proactive and make sure your project schedule includes time to accommodate this review period.