The Advisory The Advisory Council’s Handbook Council’s Handbook on Consultation with on Consultation with Indian Tribes Indian Tribes Brian Jones, AHS, Inc. Brian Jones, AHS, Inc. The Section 106 process is intended to provide The Section 106 process is intended to provide both the public and certain individuals or both the public and certain individuals or groups with the opportunity to provide their groups with the opportunity to provide their views so that the federal agency can make an views so that the federal agency can make an informed decision. informed decision.
Transcript
The Advisory The Advisory Council’s Handbook Council’s Handbook
on Consultation with on Consultation with Indian TribesIndian Tribes
Brian Jones, AHS, Inc.Brian Jones, AHS, Inc.
The Section 106 process is intended to provide The Section 106 process is intended to provide both the public and certain individuals or both the public and certain individuals or
groups with the opportunity to provide their groups with the opportunity to provide their views so that the federal agency can make an views so that the federal agency can make an
informed decision. informed decision.
In the Northeast, most consultation regards non-federal, non-tribal lands
The Special Status of The Special Status of Federally-Recognized Federally-Recognized
TribesTribesThe federal government’s unique relationship with each and The federal government’s unique relationship with each and every Indian tribe is embodied in the U.S. Constitution, every Indian tribe is embodied in the U.S. Constitution, treaties, court decisions, federal statutes, and executive treaties, court decisions, federal statutes, and executive orders. The relationship is deeply rooted in history, dating orders. The relationship is deeply rooted in history, dating back to the earliest contact between colonial and tribal back to the earliest contact between colonial and tribal governments. As the colonial powers did, the United States governments. As the colonial powers did, the United States acknowledges federally recognized Indian tribes as sovereign acknowledges federally recognized Indian tribes as sovereign nations; thus their interaction takes places on a “government-nations; thus their interaction takes places on a “government-to-government” basis. to-government” basis. - Handbook p. 2 - Handbook p. 2
Based on the 2001 “Indian canons of statutory Based on the 2001 “Indian canons of statutory construction” ambiguities in legislation construction” ambiguities in legislation dealing with tribal issues are to be construed dealing with tribal issues are to be construed liberally in favor of tribesliberally in favor of tribes
The Section 106 ProcessThe Section 106 Process InitiationInitiation
Will the undertaking effect historic properties, Will the undertaking effect historic properties, archaeological sites, burial grounds, sacred archaeological sites, burial grounds, sacred landscapes or features, ceremonial areas, or plant landscapes or features, ceremonial areas, or plant and animal communities?and animal communities?
IdentificationIdentification Archaeological and Historical surveyArchaeological and Historical survey Native American consultation regarding properties Native American consultation regarding properties of of religious and cultural significancereligious and cultural significance
AssessmentAssessment No effectNo effect No adverse effectNo adverse effect Adverse effectAdverse effect
ResolutionResolution AvoidanceAvoidance Mitigation of effectMitigation of effect
Who initiates Who initiates Consultation?Consultation?
A federal agency officialA federal agency official Government-to-government communicationGovernment-to-government communication
Contractors should not initiate or Contractors should not initiate or carry out tribal consultationcarry out tribal consultation Not a government-to-government Not a government-to-government relationshiprelationship
UnlessUnless there is advance agreement to there is advance agreement to permit this in writingpermit this in writing
The federal agency is ultimately The federal agency is ultimately responsible for appropriate responsible for appropriate consultationconsultation
The Position of CRM Firms The Position of CRM Firms in Consultationin Consultation
Advisory Council on Historic Preservation
THPOs Federal Agencies
THPO Staff/Monitors Project Engineers
CRM Firms
The Keeper of the National Register of Historic Places
ConsultationConsultation Consultation means the process of seeking, discussing, Consultation means the process of seeking, discussing,
and considering the views of other participants, and and considering the views of other participants, and where feasible, seeking agreement with them regarding where feasible, seeking agreement with them regarding matters arising in the Section 106 processmatters arising in the Section 106 process – 36 CFR – 36 CFR §§800.16(f)800.16(f)
More than simple notificationMore than simple notification Applies both on and off tribal landsApplies both on and off tribal lands
THPO takes on SHPO role on tribal landsTHPO takes on SHPO role on tribal lands Off tribal lands THPO acts as a consulting Off tribal lands THPO acts as a consulting partyparty
Subject to normal Section 106 time framesSubject to normal Section 106 time frames Failure to respond permits an agency to Failure to respond permits an agency to proceedproceed
The Consultation ProcessThe Consultation Process Ensure that tribes have a reasonable Ensure that tribes have a reasonable opportunity to identify concerns about opportunity to identify concerns about historic historic propertiesproperties ““historic properties” are properties listed in the historic properties” are properties listed in the National Register or eligible for listingNational Register or eligible for listing
Identify concerns about historic propertiesIdentify concerns about historic properties Tribes possess Tribes possess special expertisespecial expertise in assessing the in assessing the eligibility of properties that may possess eligibility of properties that may possess religious and cultural significance to them religious and cultural significance to them
Advise on identification and evaluation of Advise on identification and evaluation of historic propertieshistoric properties
Articulate views on the undertaking’s effects Articulate views on the undertaking’s effects on such propertieson such properties
Participate in the resolution of effectsParticipate in the resolution of effects
The ACHP encourages federal agencies to The ACHP encourages federal agencies to take the steps necessary to facilitate take the steps necessary to facilitate tribal participation at all stages of the tribal participation at all stages of the 106 process106 process
Agencies are encouraged to help with Agencies are encouraged to help with travel expenses for field visits, expert travel expenses for field visits, expert consultation, monitoring activities, consultation, monitoring activities, research associated with historical research associated with historical investigations, and document production investigations, and document production costscosts
Agencies Should Agencies Should notnot be expected to pay a be expected to pay a fee to a tribe to provide comments or fee to a tribe to provide comments or concurrence regarding effectsconcurrence regarding effects
Resolution of Findings Resolution of Findings off Tribal Landsoff Tribal Lands
NR EligibleNR Eligible SHPO concurrence required, but no tribal SHPO concurrence required, but no tribal concurrence requiredconcurrence required
No EffectNo Effect Provide notification and documentation to tribes Provide notification and documentation to tribes who can appeal to ACHPwho can appeal to ACHP
No adverse effectNo adverse effect Agency consults with SHPO, notifies tribes and Agency consults with SHPO, notifies tribes and other consulting partiesother consulting parties
Agency encouraged, but not required, to seek Agency encouraged, but not required, to seek concurrence of consulting tribesconcurrence of consulting tribes
30-day window for consulting tribes to object in 30-day window for consulting tribes to object in writing to agency -> ACHP review initiatedwriting to agency -> ACHP review initiated
Adverse EffectAdverse Effect Consultation with SHPO and THPOConsultation with SHPO and THPO
Resolution of Adverse Resolution of Adverse EffectsEffects
Agency consults with SHPO, THPOs, and other Agency consults with SHPO, THPOs, and other consulting partiesconsulting parties Any consulting party may request ACHP participation Any consulting party may request ACHP participation to facilitate resolutionto facilitate resolution
ACHP may enter consultation at any time to ensure ACHP may enter consultation at any time to ensure that Section 106 process is fulfilledthat Section 106 process is fulfilled
AgreementAgreement agency, SHPO and consulting parties develop a section agency, SHPO and consulting parties develop a section 106 Memorandum of Agreement or Programmatic 106 Memorandum of Agreement or Programmatic Agreement, THPO not required to be signatory or Agreement, THPO not required to be signatory or concurring partyconcurring party
No AgreementNo Agreement Agency, SHPO or ACHP may terminate consultationAgency, SHPO or ACHP may terminate consultation ACHP submits formal comments to agency after period ACHP submits formal comments to agency after period of public responseof public response
Agency prepares a final decision with rationale and Agency prepares a final decision with rationale and evidenceevidence
Tips for Effective Tips for Effective ConsultationConsultation
Consult early and oftenConsult early and often RespectRespect
Understand sovereignty and cultural conventionsUnderstand sovereignty and cultural conventions Always show deference toward tribal eldersAlways show deference toward tribal elders
CommunicationCommunication Provide clear information about the undertakingProvide clear information about the undertaking Communicate directly and follow upCommunicate directly and follow up Be patientBe patient
Organize effective meetingsOrganize effective meetings Ideally on-siteIdeally on-site Consider tribal expectations and meeting Consider tribal expectations and meeting organizationorganization
Offer tribal participants a chance to open the Offer tribal participants a chance to open the meetingmeeting
Be open to tribal perspectivesBe open to tribal perspectives
Democratizing Knowledge Democratizing Knowledge Production through CBPRProduction through CBPR
Combines knowledge derived through Combines knowledge derived through different experiences and different experiences and traditionstraditions
Scholars and communities develop Scholars and communities develop equitable partnershipsequitable partnerships
Projects are community-drivenProjects are community-driven Address concerns of descendent and Address concerns of descendent and local groupslocal groups
Realities of Participatory Realities of Participatory Research Research
under Section 106under Section 106 Participatory research needs to happen Participatory research needs to happen from the outsetfrom the outset An aspect of the permit process, field An aspect of the permit process, field design, interpretation of results, design, interpretation of results, assessments of eligibility, mitigation assessments of eligibility, mitigation planning, report writingplanning, report writing
Challenges to working under expected Challenges to working under expected time and budget constraintstime and budget constraints Federal agencies likely to shy from Federal agencies likely to shy from “unnecessary” collaboration“unnecessary” collaboration
Above and beyond “properties of religious Above and beyond “properties of religious and cultural significance”and cultural significance”
106 happens in business, not academic time106 happens in business, not academic time
Consultation with Indian Tribes in the Section 106 Review Consultation with Indian Tribes in the Section 106 Review Process: A HandbookProcess: A Handbook. ACHP, 2012. . ACHP, 2012. http://www.achp.gov/docs/consultation-indian-tribe-handbook.pdf
Tribal Consultation: Best Practices In Historic Tribal Consultation: Best Practices In Historic PreservationPreservation. National Association of Tribal . National Association of Tribal Historic Preservation Officers, 2005. Historic Preservation Officers, 2005. http://www.nathpo.org/PDF/Tribal_Consultation.pdf
Cultural Resource Laws and PracticeCultural Resource Laws and Practice, Thomas King, , Thomas King, 2012, AltaMira Press.2012, AltaMira Press.
