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Letter from the Deputy Executive Director Regarding
FHWA and DOT Contracting Directly with Tribal Governments
for Archeological Survey Work

U.S. Department
of Transportation
Federal Highway
Administration

July 3, 2001

Refer to: HEPH

Mr. John B. Brown
Tribal Historic Preservation Officer
Narragansett Indian Tribal
Historic Preservation Office
Wyoming, RI 02898

Dear Mr. Brown:

This letter is in response to your June 5 telephone call to Ms. Camille Mittelholtz, Environmental Policies Team Leader in the Secretary's Office of Transportation Policy Development. In consultation with her and Mr. Stephen Shapiro, the Department's Historic Preservation Officer, we have reviewed your proposal that the U.S. Department of Transportation (DOT) enter into a contract with your Office for archeological survey work on Federal-aid highway and Indian Reservation Road (IRR) projects.

The Federal-aid highway program is a federally assisted, State-administered partnership. We make Federal-aid highway funds available to the Rhode Island Department of Transportation (RIDOT), which works with local officials to decide which projects are developed. Our role is to cooperate with RIDOT to ensure compliance with Federal requirements, such as the National Environmental Policy Act and the National Historic Preservation Act (NHPA).

Under our governing legislation, RIDOT is the responsible agency for all aspects of project development, including environmental review and archeological survey work before and during construction. This responsibility is clear from Title 23, United States Code, Section 145 (which provides for a "federally assisted State program") and from such other Title 23 provisions as Sections 106 ("Project approval and oversight"), 112 ("Letting of contracts"), 114 ("Construction"), 116 ("Maintenance"), and 302 ("State transportation department"). The Federal Highway Administration (FHWA) does not enter into contracts for the State's Federal-aid project-related work. Similarly, the DOT cannot do so.

With the FHWA's encouragement, RIDOT decided to enter into a Memorandum of Understanding (MOU) with the Narragansett Tribal Historic Preservation Office for archeological surveying to comply with NHPA on Federal-aid highway projects. Neither the FHWA nor the NHPA required RIDOT to enter into the MOU. However, RIDOT entered into the MOU in good faith and the FHWA agreed to reimburse RIDOT for the Federal share of eligible expenses incurred under the MOU.

As reflected in your comments to Ms. Mittelholtz, disputes have arisen over interpretation of the MOU on a project-by-project basis. I regret that the MOU has not worked to the satisfaction of either party, but the ongoing difficulties do not alter the fact that under our governing legislation, the FHWA cannot substitute for RIDOT as a contracting agency. I encourage you, therefore, to work with RIDOT to resolve the issues surrounding archeological survey work under the MOU. The MOU may have to be revised or replaced entirely, but an accord between RIDOT and the Narragansett Indian Tribe is the best way to ensure continued tribal participation.

Our Rhode Island Division Administrator, Ms. Melisa L. Ridenour, and Assistant Division Administrator Daniel Berman are available to work with you and RIDOT to try to reach agreement on future surveying needs. However, neither they nor any officer of the FHWA or DOT can consider entering into a separate contract with the Narragansett Indian Tribe to provide the services covered by the MOU.

Funding for IRR projects is made available through the Bureau of Indian Affairs (BIA). The BIA Eastern Region is in the best position to discuss archeological surveying on IRR projects. I suggest you contact Mr. Roger Markos, the BIA's Eastern Road Engineer (address: 711 Stewarts Ferry Pike, Nashville, Tennessee 37214; telephone: 615-467-1664). I want to make clear, however, that if such a contract is possible for IRR projects, it could not be expanded to cover Federal-aid highway projects administered by RIDOT.

I will ask Ms. Ridenour to provide a copy of this correspondence to RIDOT officials so they will be aware of my response. She also will let RIDOT know that she and Mr. Berman are available to help both parties find ways to make the MOU work.

I hope my comments will prove helpful in resolving the issues surrounding the MOU.

Sincerely yours,

/s/
Vincent F. Schimmoller
Deputy Executive Director