NPS Tribal Consultation Resource

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					Consultation with
Native Americans
A Historic Preservation
Responsibility


    Every Federal
Agency is responsible
  for “government-
   to-government”
 relationships with
    Indian Tribes.
Consultation with Native Americans:
A Historic Preservation Responsibility

Must Agencies Consult?                   Is Consultation Only                       What does this mean
                                         about Giving Notice                        when Consulting about
Yes. The Federal government and          of Projects?                               Cultural Resources?
Indian tribes have a special political
relationship that is “government-        No, that’s not enough. Indian              ■   Consultation must take place
to-government.” The basis for this       tribes are not just part of a list of          according to the general policies
is in the Constitution of the United     “interested” parties. Consultation is a        and programs developed by each
States (Article 1, Section 8), which     specific element of the “government-            Federal agency to establish and
recognizes tribes as sovereign. The      to-government” relationship and has            maintain its government-to-
United States Supreme Court              unique characteristics. Regular and            government relationships with
affirmed and clarified the unique          meaningful consultation, particularly          tribes.
relationship in 1831 in the doctrine     about impacts of policies or actions, is
                                                                                    ■   Each agency must designate the
of “dependent domestic nations.”         central to the mutual respect inherent
                                                                                        officials responsible for conducting
                                         in recognition of sovereignty.
The responsibility to develop and                                                       government-to-government
maintain formal relationships with       Over the years there have been                 relationships. In some agencies, this
tribes has always been part of our       many kinds of legal documents that             may be the Federal Preservation
nation’s history. Treaties between the   describe the process of consultation           Officer (FPO) who is charged
United States and Indian tribes have     as ongoing. To accomplish this, every          with statutory responsibilities
been one of the ways we recognized       Federal agency should ensure that the          for developing, maintaining, and
sovereignty and the right of self-       Agency Tribal Liaison, the Federal             implementing cultural resource
government. Executive Order 13175        Preservation Officer, agency decision-          programs, consistent with their
(November 2000) requires each            makers and other appropriate                   agencies’ respective missions
Federal agency to establish programs     personnel work together to develop             [National Historic Preservation
that describe and maintain the           and carry out a consultation policy            Act]. FPO responsibilities may also
consultative relationship with tribes    and protocols in collaboration with            include development of procedures
on matters that have substantial         Indian tribes. Consultation is part            for carrying out consultation with
direct effects on them.                  of the on-going mission of every               federally recognized American
                                         Federal agency.                                Indian tribes and Alaska Native
                                                                                        villages; and, with Native
                                                                                        Hawaiian organizations.

                                                                                    ■   Agency protocols for consultation
                                                                                        should be incorporated into
                                                                                        regulations, manuals, orders, or
                                                                                        instructions that consider the
                                                                                        agency’s mission and how that
                                                                                        conditions the government-to-
                                                                                        government relationship.

                                                                                    Representatives of the Eastern Band of the
                                                                                    Cherokee Indians, the North Carolina State
                                                                                    Conservationist, the South Carolina State
                                                                                    Conservationist, and the Natural Resources
                                                                                    Conservation Service of the U.S. Department
                                                                                    of Agriculture sign a consultation agreement
                                                                                    at the tribal headquarters in Cherokee, NC,
                                                                                    in September 2002.
What are the legal
authorities?
Several statutes, regulations, and executive
orders, relating to cultural resources, impact
consultation procedures with Native
Americans, Alaska Natives, and Native
Hawaiians. Some of the most important,
with selected text, are:

National Historic Preservation Act of
1966, as amended [16 U.S.C. 470 et seq.]
In carrying out its responsibilities under
section 106 of this Act, a Federal agency shall
consult with any Indian tribe or Native
Hawaiian organization that attaches religious
and cultural significance to properties. . . .
Section 101(d)(6)(B)

National Environmental Policy Act, 1969              In 1999, members of four different tribes, Northern Arapaho, Cheyenne and Arapaho Tribes of
[43 U.S.C. 4321 and 4331-35]                         Oklahoma, and Northern Cheyenne Tribe, and the National Park Service’s American Battlefield
                                                     Protection Program staff collaborate on a cultural resources survey of the Sand Creek Massacre site
As part of the scoping process the lead agency
                                                     near Eads, CO.
shall: (1) Invite the participation of . . . any
affected Indian tribe. . . . 40 CFR 1501.7(a)
                                                     Executive Order 13175, Consultation with             order shall apply equally to Native American
National Environmental Policy Act, CEQ               Indian Tribal Governments, 2000                      programs. In addition, the Department of the
regulations [40 C.F.R. Part 1500]                    . . . in order to establish regular and              Interior, in coordination with the Working
Sections 1501.2(d)(2), 1501.7(a)(1),                 meaningful consultation and collaboration            Group, and after consultation with tribal
1502.15(c), 1503.1(a)(2)(ii), 1506(b)(3)(ii),        with tribal officials in the development              leaders, shall coordinate steps to be taken
1508.5, 1508.12                                      of Federal policies that have tribal                 pursuant to this order that addresses Federally-
                                                     implications. . . .                                  recognized Indian tribes. Section 6-606
American Indian Religious Freedom Act
[42 U.S.C. 1996], 1978                               Executive Order 13084, Consultation                  Executive Order 12875, Enhancing the
. . . it shall be the policy of the United States    and Coordination with Indian                         intergovernmental partnership, 1993
to protect and preserve for American Indians         Tribal Government, 1998                              Each agency shall develop an effective
their inherent right of freedom to believe,          . . . Each agency shall have an effective            process to permit elected official and other
express, and exercise the traditional religions      process to permit elected officials and other         representative of State, local, and tribal
of the American Indian, Eskimo, Aleut, and           representatives of Indian tribal governments         governments to provide meaningful and
Native Hawaiians, including but not limited          to provide meaningful and timely input in the        timely input in the development of regulatory
to access to sites, use and possession of sacred     development of regulatory policies on matters        proposals. . . . Section (1)(b)
objects, and the freedom to worship through          that significantly or uniquely affect their
                                                                                                          Indian Self Determination and Education
ceremonials and traditional rites.                   communities.
                                                                                                          Assistance Act [25 U.S.C. 450a-e], 1975
Archaeological Resources Protection Act,             Executive Order 13007, Sacred Sites, 1996            The Congress . . . finds that . . . the Indian
[16 U.S.C. 470aa-mm], 1979                           Each executive branch agency . . . shall . . .       people will never surrender their desire
. . . before issuing such permit, the Federal land   promptly implement . . . procedures to ensure        to control their relationships both among
manager shall notify any Indian tribe which          reasonable notice is provided of proposed            themselves and with non-Indian governments,
may consider the site as having religious or         actions or land management polices that many         organizations, and persons.
cultural importance. Section (4)(c)                  restrict future access to or ceremonial use of, or
                                                                                                          The Congress hereby recognizes the obligation
                                                     adversely affect the physical integrity of, sacred
Native American Graves Protection                                                                         of the United States to [assure] maximum
                                                     sites. Section (2)(a)
and Repatriation Act, 1990                                                                                Indian participation in the direction of . . .
[25 U.S.C. 3001 et seq.]                             Executive Order 12898, Federal Actions               Federal services to Indian communities to [be]
Consulting with Indian tribes and Native             to Address Environmental Justice in                  more responsive to the needs and desires of those
Hawaiian organizations and museums                   Minority Populations and Low-Income                  communities.
on matters within the scope of the work              Populations, 1994
of the committee affecting such tribes or            Native American Programs. Each Federal
organizations. Section 8 (c)(6)                      Agency responsibility set forth under this
Internet Resources
■   National Park Service Tribal Preservation Program       ■   Tribal Database for Historic Preservation
    www.cr.nps.gov/hps/tribal                                   Compliance (developed by the Department of
■   Advisory Council on Historic Preservation                   Housing and Urban Development)
    www.achp.gov                                                www.hud.gov/offices/cpd/energyenviron/
                                                                environment/subjects/preservation/index.cfm
■   Code Talk (sponsored by the Department for
    Housing and Urban Development)                          ■   National Congress of American Indians
    www.codetalk.fed.us                                         www.ncai.org
■   Consultation Training (sponsored by the Federal         ■   National Tribal Justice Resource Center
    Preservation Institute and the Department of Justice)       www.tribalresourcecenter.org
    www.historicpreservation.gov/fpi/Training               ■   Native American Rights Fund
■   Listing of government-wide Indian program websites          www.narf.org
    www.asu.edu/clas/history/h-amindian/usgovt.htm          ■   Historic Preservation Learning Portal
■   NAGPRA Consultation Database of Tribal Contacts             www.historicpreservation.gov
    www.cr.nps.gov/nagpra/onlinedb/index.htm
                                           Members of the Te-Moak Tribe of Western Shoshone
                                           Indians and staff of the Bureau of Land Management
                                           gather together on a hill during a tour of the Diamond
                                           Mountain Complex near Eureka, NV, as part of
                                           consulting about the Fire Defense Project.




Internet Resources to
help identify tribes and
tribal officials
■   Tribal Leaders Directory
    http://www.doi.gov/leaders.pdf
■   National Association of Tribal
    Historic Preservation Officers
    http://www.nathpo.org/THPO_
    Members/member_list.html
■   National Council for State Historic
    Preservation Officers
    http://www.ncshpo.org/stateinfolist/
■   Comprehensive list of Tribal Chairs
    http://www.hanksville.org/sand/
    contacts/tribal/
                                                                Best Practices in                                    Steps in Consultation                          Helpful Tips for
                                                                Consultation                                         for Federal Agencies                           Federal Agencies
                                                                ■   Understand and follow the                        Step One: Develop planning                     ■   Meet face to face. Know to whom
                                                                    protocols for government-to-                     documents including the scope of the               you are talking. Get to know one
                                                                    government meetings.                             project and the project’s boundaries or            another and learn how each other’s
                                                                                                                     area of potential effect.                          organizations function. Inform the
                                                                ■   Inform tribes on project details
                                                                                                                                                                        tribes about your agency’s mission,
                                                                    prior to consultation session.                   Step Two: Identify consulting
                                                                                                                     partners by contacting Tribal Historic             goals, programs, and typical
                                                                ■   Coordinate with your Agency                      Preservation Officers (THPOs),                      actions. Learn about their tribal
                                                                    Tribal Liaison.                                  Tribal leaders, regional intertribal               government and programs. Know
                                                                                                                     organizations, and SHPOs to                        the administrative limitations
                                                                ■   Consult with the tribes as                                                                          faced by tribes. Avoid information
                                                                                                                     determine which tribes, including
                                                                    early as possible in the project                                                                    overload.
                                                                                                                     those not necessarily presently
                                                                    conceptualization and planning
                                                                                                                     residing in the state or vicinity of the
                                                                    process.                                                                                        ■   Consult early and often. Meet
                                                                                                                     project area, may have an interest.
                                                                                                                                                                        often, even before there is an issue
                                                                ■   Communicate with tribes as an                                                                       under review. Make sure there is an
                                                                                                                     Step Three: Make initial contact with
                                                                    on-going process to exchange                                                                        on-going exchange of information.
                                                                                                                     the THPO or tribal leader (for tribes
                                                                    information, concerns, and priorities            not having a THPO) by telephone with               Build consultation into your
                                                                    and not as a single meeting.                     follow-up letter containing relevant               planning process. Stay in touch.
                                                                ■   Consult with Tribes prior to                     information about the project and a
                                                                                                                                                                    ■   Be honest. Don’t promise what you
                                                                    substantive meetings on how                      request for a consultation meeting.
                                                                                                                                                                        can’t deliver.
                                                                    and with whom to consult.                        Step Four: Arrange with the tribal
                                                                                                                     contacts for a time, place, agenda, and        ■   Create a detailed administrative
                                                                [source: Tribal Consultation: Best Practices
                                                                                                                     goals for a meeting. Determine if there            record. You know you have one
                                                                in Historic Preservation*]
                                                                                                                     are any barriers to tribal participation           when you meet the requirements of
                                                                                                                     such as the time, cost, and/or location.           the Administrative Procedures Act.

                                                                                                                     Step Five: Conduct the consultation            ■   Recognize cultural differences in
                                                                                                                     meeting in a manner that provides                  approaches to consultation and
Office of Subsistence Management, U.S. Fish & Wildlife Service




                                                                                                                     time for meeting participants to get               preservation of cultural resources.
                                                                                                                     to know each other, for presentations
                                                                                                                     and discussions, and for identifying
                                                                                                                     details for future meetings or
                                                                                                                     consultation, as appropriate.

                                                                                                                     Step Six—Repeat step 5 as necessary.

                                                                                                                     Step Seven—Conclude consultation
                                                                                                                     on the project with a plan, agreement
                                                                                                                     or other documentation that satisfies           * Tribal Consultation: Best Practices in Historic
                                                                                                                     the requirements of the Federal laws,            Preservation by National Association of
                                                                The Bristol Bay Regional Advisory Council,                                                            Tribal Historic Preservation Officers, May
                                                                one of the subsistence advisory councils in Alaska
                                                                                                                     regulations, or Executive Orders that
                                                                                                                     the consultation is intended to meet.            2005. Available at www.nathpo.org or from
                                                                that are composed of many Federal agencies and
                                                                Alaska Native Villages and Corporations, meets                                                        National Association of Tribal Historic
                                                                on a regular basis as part of the consultation       [source: Tribal Consultation: Best Practices     Preservation Officers, P.O. Box 19189,
                                                                process in Alaska.                                   in Historic Preservation*]                       Washington, DC 20036-9189.
Consultation with Native Americans:
A Historic Preservation Responsibility

In the consultation                        What are the Benefits                             When is Consultation
process to protect                         of Consulting with                               complete?
cultural resources,                        Native Americans?
what are agency                                                                             Consultation is more than a letter.
responsibilities?                          ■   Knowledge and understanding of               An agency’s notification to a tribe
                                               the importance of cultural heritage          does NOT constitute the complete
■   Determine which laws apply to              to Native Americans.                         consultation process. Nor must
    your agency’s project.                                                                  tribal consent or agreement always
                                               Every tribe and every Native
■   Determine which definitions                 American have traditions and                 be obtained before the consultation
    within the laws apply to your              places that they and their ancestors         process can be concluded.
    project [see Definitions].                  have valued for thousands of years           Consultation is completed once a
■   Determine with which tribes to             and which should be respected.               well-documented administrative
    consult.                                   Through consultation, we can                 history of government-to-government
                                               learn what cultural resources are            discussions (face-to-face preferred) of
■   Be sure the highest agency official         important to them. We also learn             the proposed project exists and a plan
    contacts the highest elected official       how to preserve and display, if              of action is agreed upon. This may
    of the Federally recognized tribe          appropriate, cultural resources in a         or may not include a memorandum
    to establish government-to-                respectful and traditional manner.           of agreement or a comprehensive
    government relations.                                                                   statement of understanding.
                                           ■   Personal contacts and one-to-one
■   Identify which tribal official or           interactions with tribes.                    Tribes and Federal agencies have found
    individual(s) to contact. [see
                                               Getting to know the tribes and               that one of the most important results
    Internet Resources].
                                               the cultural resources they value            of consultation is opening respectful and
■   Consult with tribes early in the           is essential for ensuring that no            ongoing communication. When both
    planning process.                          Federal program deprives them                partners seek to follow a consultation
                                               of the rights afforded by the                process, it can clarify issues, define
■   Provide tribes with notice of
                                               Constitution of the United States            concerns, exchange information, and
    agency’s plans by either telephone
                                               and Federal law.                             formulate useful discussion.
    and/or letter.
                                               Greater project efficiencies and              Successful consultation leads to future
■   Carry out consultation meetings or     ■
                                               planning.                                    successful consultation. Consultation
    other consultation process agreed
                                                                                            with tribes is not only the law—it is
    to with the tribes.                        Consultation allows agencies to take         time well spent.
■   Document the results of the                into consideration tribal concerns
    agency’s consultation.                     in time to avoid or reduce delays
                                               or project disruption and lawsuits.
■   Implement all actions the agency
                                               Timely and successful consultation
    agreed to during consultation.             can reduce the compliance costs of
                                               agency projects over time.



                                           Successful consultation between the Battle
                                           Mountain Field Office, Nevada State Office,
                                           Bureau of Land Management and the Te-Moak
                                           Tribe of Western Shoshone Indians included a
                                           field trip to understand the fragility of small
                                           American Indian cultural resources found in
                                           Diamond Mountain Complex, managed by the
                                           Bureau of Land Management, near Eureka, NV.
Definitions
There are many terms with formal               Native American means of, or                    Cover Photos
meanings that pertain to preservation          relating to, a tribe, people, or culture
program operations and “government-            that is indigenous to the United States.        Clockwise from top:
to-government” relationships. Some             (NAGPRA)                                        Consultation by the Federal Energy Regulatory
definitions of the most useful are given                                                        Commission with the Confederated Tribes of the
below as well as their legal sources.
                                               Native Hawaiian                                 Warm Springs Reservation and Portland General
                                               organization means any                          Electric Company resulted in traditional Indian
Consultation means the process of              organization which serves and represents        markings on this hydroelectric dam in Oregon.
seeking, discussing, and considering the       the interests of Native Hawaiians; has a
                                                                                               To assist in consultation between the Muscogee
views of other participants, and, where        primary and stated purpose the provision
                                                                                               (Creek) Nation of Oklahoma and Federal
feasible, seeking agreement with them          of services to Native Hawaiians; and            agencies, the National Park Service provided
regarding matters arising in the section 106   has demonstrated expertise in aspects of        training in the use of Geographic Information
process. The Secretary’s “Standards and        historic preservation that are significant to    System (GIS) and Global Positioning Satellite
Guidelines for Federal Agency Preservation     Native Hawaiians. (36CFR 800)                   (GPS) technology in Okmulgee, OK.
Programs pursuant to the National Historic                                                     Credit: James Stein, National Park Service Contractor

Preservation Act” provide further guidance
                                               Native Hawaiian Organization
                                               means any organization which,                   A traditional Chinook post-raising ceremony
on consultation. (36CFR 800)                                                                   is performed at Cathlapotle in the Ridgefield
                                               1. serves and represents the interests of       National Wildlife Refuge, WA, in 2003, as a
Indian Tribe means an Indian tribe,               Native Hawaiians                             result of consultation among the U.S. Fish and
and, nation, or other organized group or                                                       Wildlife Service, the Chinook Nation, and
                                               2. has a primary and stated purpose
community, including a native village,                                                         Portland State University.
                                                  the provision of services to Native
regional corporation or village corporation,
                                                  Hawaiians, and                               Devil’s Tower, a National Park Service National
as those terms are defined in section 3 of
                                               3. has expertise in Native Hawaiian             Monument in northeastern Wyoming, is
the Alaska Native Claims Settlement Act
                                                  Affairs, and shall include the Office of      historically and culturally associated with more
(43 U.S.C. 1602), which is recognized                                                          than 20 tribes because of its importance to their
as eligible for the special programs and          Hawaiian Affairs and Hui Malama I Na
                                                                                               traditional beliefs and practices and, through the
services provided by the United States to         Kupuna O Hawai’I Nei (NAGPRA)                consultation process, is now managed in a way
Indians because of their status as Indians.    Hui Malama I Na Kupuna O                        that respects and lawfully accommodates tribal
(36CFR 800)                                                                                    concerns and the agency’s mission.
                                               Hawai’i Nei means the nonprofit,
Indian Tribe means any tribe, band,            Native Hawaiian organization incorporated       In 2002, the Bureau of Land Management
nation or other organized Indian group         under the laws of the State of Hawaii           arrived at an agreement with Governor
                                               by that name on April 17, 1989, for             Lavato and other officials of the Pueblo of Santo
or community of Indians, including any
                                               the purpose of providing guidance and           Domingo in New Mexico through consultation
Alaska Native village (as defined in, or                                                        on issues related to the traditional cultural uses of
established pursuant to, the Alaskan           expertise in decisions dealing with Native
                                                                                               land by the Pueblo.
Native Claims Settlement Act), which           Hawaiian cultural issues, particularly burial
is recognized as eligible for the special      issues. (NAGPRA)
programs and services provided by the          Native Hawaiian means any
United States to Indians because of their      individual who is a descendant of the
status as Indians. (NAGPRA) (ARPA)             aboriginal people who, prior to 1778,
Indian Tribe means an Indian or                occupied and exercised sovereignty in
Alaska Native tribe, band, nation, pueblo,     the area that now constitutes the State of
village, or community that the Secretary of    Hawaii. (36CFR 800) (NAGPRA)
the Interior acknowledges to exists as an      Alaska Native villages or                       This folder was produced through a
Indian tribe pursuant to Public Law No.        corporations. See definitions for
103-454, 108 Sat. 4791, and “Indian” refers                                                    collaborative effort of several Federal
                                               Indian Tribe
to a member of such an Indian Tribe . . .                                                      agencies working with the National
(EO 13007)                                                                                     Association of Tribal Historic Preservation
                                                                                               Officers and the National NAGPRA
Indian Tribe means an Indian or                                                                Program and the Federal Preservation
Alaska Native tribe, band, nation, pueblo,                                                     Institute of the National Park Service.
village, or community that the Secretary                                                       Distributed by the Federal Preservation
of the Interior acknowledges to exist as                                                       Institute (2254), National Park
an Indian tribe pursuant to the Federally
                                                                                               Service,1849 C Street, NW, Washington
Recognized Indian Tribe List Act of 1994,
                                                                                               DC, 20240. Email: NPS_FPI@nps.gov
25 U.S.C. 479a. (EO 13175)