Pueblo of Sandia v. United States Forest Service, 50 F.3d 856 (10th Cir. 1995)

The U. S. Court of Appeals for the Tenth Circuit ruled that the U.S. Forest Service violated Section 106 of the National Historic Preservation Act, by failing to make a “reasonable and good faith effort” in identifying traditional cultural properties (TCPs) before the approval of a visitors management plan for Las Huertas Canyon in the Cibola National Forest, New Mexico. Because the U.S. Forest Service failed to provide information to the State Historic Preservation Office about traditional cultural properties existing in the canyon, and they did not take the tribe’s secrecy/confidentiality concerns seriously, the court ruled that the U.S. Forest Service did not act in a reasonable and good faith effort.

Muckleshoot Indian Tribe v. United States Forest Service, 177 F.3d 800 (9th Cir. 1999)

The plaintiffs-appellants, the Muckleshoot Indian Tribe, et al. (Muckleshoot Tribe), argued that the U.S. Forest Service violated the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) during a land exchange with Weyerhauser Company. On appeal, the Tribe argued that the U.S. Forest Service violated the NHPA by failing to “consult adequately with the tribe regarding the identification of traditional cultural properties.” The circuit court found that the U.S. Forest Service had adequately consulted with the tribe. Unlike the case in Pueblo of Sandia v. the United States, the court ruled that the U.S. Forest Service consulted several times with the tribes, demonstrated adequate research efforts, and provided all relevant information to the State Historic Preservation Officer.

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U.S. Department of Interior (DOI)

Bureau of Indian Affairs: Government-to-Government Consultation Policy. Pursuant to the President’s Executive Order 13175 of November 6, 2000, and in consultation with tribes, the DOI issued a government-to-government consultation policy that provides step-by-step procedures for consultation.

H-8160-1- General Procedural Guidance for Native American Consultation. This guidance details what the Bureau of Land Management considers to be a reasonable and good faith effort for obtaining appropriate tribal input in the project and program decision making process.

U.S. Department of Defense (DOD)

Department of the Navy Policy for Consultation with Federally Recognized Indian Tribes. The purpose of this policy is to clarify Department of the Navy policy, procedures and responsibilities when consulting with representatives of federally recognized Indian tribes, including Alaska Native governments, on issues with the potential to impact protected tribal resources, tribal rights, or Indian lands.

Fort Bragg’s Standard Operating Procedure for Native American Consultation [PDF 30kb]. This document outlines the minimum procedures that Fort Bragg uses to conduct tribal consultation, and includes Fort Bragg’s statement on public disclosure and confidentiality on tribal issues.

Pennsylvania Department of Transportation

Interim Guidance for Consulting with Indian Tribes [PDF 67kb].  The Pennsylvania Department of Transportation has developed a set of interim guidelines on consulting with tribes for Section 106 undertakings. Pennsylvania has no tribal reservations and yet 14 Native American tribes have historical connections to land within the state’s borders.  The guidelines provide state and federal agency personnel with the means to make a reasonable and good faith efforts to consult with the tribes.

Advisory Council on Historic Preservation (ACHP)

ACHP Policy Statement Regarding ACHP’s Relationships with Indian Tribes. “This policy establishes the framework by which the ACHP integrates the concepts of tribal sovereignty, government-to-government relations, trust responsibilities, tribal consultation, and respect for tribal religious and cultural values into its administration of the Section 106 process and its other activities.”

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Guide on Consultation and Collaboration with Indian Tribal Governments and the Public Participation of Indigenous Groups and Tribal members in Environmental Decision Making [PDF 1.17mb] (from the National Environmental Justice Advisory Council, Indigenous Peoples Subcommittee, a federal advisory committee to the U.S. Environmental Protection Agency). The guide provides recommendations and information on what constitutes effective consultation, what consultation means, and methods for constructive communication with tribes. (http://www.epa.gov/compliance/resources/publications/ej/ips_consultation_guide.pdf

A Guide for DOE Employees Working with Indian Tribal Nations [PDF 563kb] (December 2000).  This guide is intended to help Department of Energy (DOE) employees and contractors build an effective working relationship with tribes. Included are topics on etiquette, how tribes make decisions, points of contact, existing agreements, etc.

Highway Administration (FHWA) has a website that provides brief summary statements on issues involving tribal consultation, including a discussion on what constitutes appropriate consultation methods.

Consulting with Indian Tribes in the Section 106 Process. This guidance from the Advisory Council on Historic Preservation clarifies the requirements for federal agencies to consult with Indian tribes, as outlined in 36 CFR 800.

Twenty Suggestions for Tribes Consulting with Land Managers [PDF 36kb], by Joe Watkins.
From SRI Foundation’s workshop Principles of Tribal Consultation, Dr. Watkins provides 20 helpful suggestions for agency officials and land managers consulting with tribal representatives.  Guidance includes how to greet tribal people, establishing seating arrangements at meetings, allowing tribal members to open meetings with a prayer, and understanding tribal leadership roles.

Ten Suggestions for Consulting with Tribes [PDF 30kb], by Joe Watkins, from SRI Foundation’s workshop Principles of Tribal Consultation. Dr. Watkins provides ten suggestions for tribal representatives consulting and interacting with agency officials. This guidance includes understanding government-to-government relationships, keeping a written record of the consultation process, requesting copies of notes or meeting minutes from agency officials, and how to achieve a more effective and beneficial working relationship among all parties.

Minimum Levels of Contact [PDF 455kb]. Updated and modified by Joe Watkins, adapted from “Federal Consultation with Native Americans,” by C. Timothy McKeown, in Common Ground 2(2), 1997. This table outlines the minimum levels of consultation required by statute in terms of different types of undertakings.

Transportation Circular EC039. Conference on Transportation Improvements[PDF 6.62mb]. Experiences among Tribal, Local, State, and Federal Governments, September 2002. This TRB Circular reports on the proceedings of a conference held in Albuquerque, New Mexico in the fall of 2001. The conference’s goal was to report on and examine present best practices on effective government-to-government relationships. The case studies discussed at the conference demonstrate the value of including tribes in the planning phases of new projects. Panel presentations provided case studies about agency and tribal experiences in Alaska, Arizona, Nevada, New Mexico, and Washington. The section entitled “Workshop Sessions,” beginning on page 77 of the Circular, outlines key issues associated with tribal consultation.

“The Navajo Nation Model: Tribal Consultation Under the National Historic Preservation Act,” [PDF 125kb] by Alan Downer, in CRM Magazine, Volume 23 (No. 9). This article presents the Navajo Nation Historic Preservation Division’s views on tribal consultation, its efforts to consult and communicate with other Indian tribes, and its development of a programmatic approach to consultation.

“Two Views of the World,” [PDF 177kb] by Sally Thompson Greiser and T. Weber Greiser, in CRM Traditional Cultural Properties, Volume 16, 1993. This article examines tribal consultation in the context of understanding political, linguistic, cultural and religious differences between indigenous peoples and agency goals and responsibilities.

Common Ground: Speaking Nation to Nation, Summer/Fall 1997, vol. 2(3/4). This volume of the National Park Service’s Common Ground contains many articles about tribal consultation and historic preservation.Articles examine the meaning of consultation and provide examples of best practices in tribal consultation. This volume of Common Ground can be accessed at: (http://www.cr.nps.gov/aad/cg/vol2_num3-4/index.htm).

Native Americans and Archaeologists: Stepping Stones to Common Ground [PDF 4.59mb], edited by Nina Swidler, Kurt E. Dongoske, Roger Anyon, and Alan S. Downer, 1997, Walnut Creek, CA, AltaMira Press (www.altamirapress.com). This volume is the result of several sessions organized at the Society for American Archaeology’s 1996 annual meeting. The volume contains a section with seven articles on tribal consultation. One article from this book, “The Seeds of Common Ground: Experimentations in Consultation,” by David G. Rice, is a particularly useful guide for improving tribal consultation. The PDF of this article is provided with permission by the publisher and author.

American Indians and the Nevada Test Site: A Model of Research and Consultation, by R. Stoffle, M. Zedeno and D. Halmo, 2001, U.S. Government Printing Office, Washington, D. C.  This volume describes the Department of Energy’s (DOE’s) tribal consultation efforts associated with the mitigation of historic properties on the Nevada Test Site. Consultation involved 16 Indian tribes, three ethnic organizations, and one pan-Indian organization. Eight other tribes consulted on a project-by-project basis.  Innovative aspects of this effort included the inclusion of Indian-authored text in reports and environmental impact statements (including this volume) and the establishing a DOE agency-wide policy on best consultation practices based on the work at the Nevada Test site.

“Significance and Traditional Cultural Properties,” [PDF 529kb] by Alan S. Downer, in Transportation Research, Number E-C055, August 2003, National Forum on Assessing Historic Significance for Transportation Programs, May 23-25, 1999, Washington, D.C. Transportation Research Board of the National Academies.  In this article, the author discusses what constitutes a reasonable and good faith effort for identifying traditional cultural properties, the importance of having an open mind, and listening and talking to traditional experts.

“Native American Consultation: Some Guidelines,” [PDF 2.60mb] by Nina Swidler (Navajo Nation Historic Preservation Division), in Preservation Notes, Transportation Research Board, Committee on Archaeology and Historic Preservation, November 2000. This article presents both guidelines for tribal consultation and how to identify appropriate points of contact within tribes.

“Consultation with American Indian Tribal Governments and the Transportation Process,” [PDF 1.19mb] by Janet E. Spivey (New Mexico Department of Transportation) in Preservation Notes, Transportation Research Board, Committee on Archaeology and Historic Preservation, November 2000. This article presents a discussion on the principles and meaning of tribal consultation.

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New Publication:

Best Practices Study on Tribal Consultation in Historic Preservation [PDF 3.67mb]

The National Association of Tribal Historic Preservation Officers in collaboration with the Advisory Council on Historic Preservation, with funding by the National Park Service has published a study that examines best practices in tribal consultation for Section 106 undertakings.  The study provides federal agencies and tribes with guidance on how to engage in successful consultations. All Federal Preservation Officers and federally recognized Tribes were contacted as part of a nationwide survey.  The study’s results affirm the value and importance of early consultation. Tribes define success differently than their federal agency partners, however, viewing the establishment of good relations as more a measure of success than completing a project and coming to an agreement on resolving adverse effects.

Georgia Department of Transportation

New Echota Traditional Cultural Property Study. New Echota was the first capitol of the Cherokee Nation, dating from 1825-1838. This site is a National Historic Landmark. Georgia Department of Transportation (DOT) had long-term plans to replace a bridge and conduct some road improvements near New Echota. In anticipation of these future projects, the DOT and the state Federal Highway Administration (FHWA) office implemented a study to determine if the site was a traditional cultural property eligible for listing in the National Register of Historic Places. This study involved extensive consultation with three federally-recognized Cherokee tribes. This proactive consultation with the tribes resulted in the development of a good working relationship among the three tribes, Georgia DOT and FHWA. The FHWA also funded the creation of a video on the New Echota study. This video serves as a training tool for evaluating the National Register eligibility of traditional cultural properties, and demonstrates the importance of proactive tribal consultation. The video can be purchased from Georgia DOT, by contacting the Department’s Map Sales Unit at (404) 656-5336 or at: OTDCustomersrv@dot.state.ga.us.

Iowa Department of Transportation

Iowa Tribal Consultation Process: Initiatives and Recommendations. The FHWA and the Iowa Department of Transportation initiated activities to establish an acceptable consultation process with tribes having a current and/or historic interest in Iowa lands. View a report on these activities [PDF 140kb] or View an article on these activities .

The Iowa DOT, FHWA, and the Iowa State Historic Preservation Officer (SHPO) have developed a Programmatic Agreement (PA) for implementing Section 106 in the state. The PA has a section on tribal consultation. The PA also includes a Tribal Notification Form to be used to contact tribes early in the project development process.

Iowa FHWA and DOT have also developed a programmatic memorandum of understanding template that establishes the parameters of tribal notification and consultation on projects in the state.  This programmatic MOU is used as an addendum to the above mentioned PA.  The purpose of these agreements is to focus tribal consultation on those undertakings that are truly of concern to tribes. The MOU template also includes an appendix (A) which outlines the tribal consultation process to be used by the Section 106 parties. For a copy of the MOU and the Appendix A, contact Mark Kerper, Iowa DOT, at: mark.kerper@dot.iowa.gov.

Kansas Department of Transportation

The Kansas Department of Transportation (KDOT) has developed new statewide Native American consultation procedures, in collaboration with the four tribes that have tribal lands in Kansas. The FHWA also contacted 31 tribes that have expressed an interest in being consulted about transportation projects in Kansas.

Minnesota Department of Transportation

Government-to-Government Transportation Accord [PDF 64kb]. This agreement stipulates a commitment between eleven tribes, MnDOT, and the FHWA to establish a government-to-government partnership on transportation matters. This partnership is intended to demonstrate mutual respect for each other; enhance, improve, and foster cooperation on transportation projects; and facilitate respectful resolution of inter-governmental differences with regard to transportation issues.

MnDOT and the FHWA have executed two Section 106 programmatic agreements with tribes, one with the Lower Sioux Indian Community and the other with the Bois Forte Band of Chippewa Indians. The PAs include stipulations on the specific counties that are of concern to the tribes, the process for tribal consultation in relation to determinations of effect and adverse effect, how to deal with new discoveries during construction, procedures for treatment of human remains, etc.

Nevada Department of Transportation

Hoover Dam Bypass Project [PDF 2.72mb]. The management team for this project won national recognition for its multiple agency partnering and coordination efforts, particularly in the area of tribal consultation. This project involved extensive consultation with tribes in terms of impacts to significant archaeological resources. Stan Rice, President of the Yavapai Prescott Indian Tribe stated, “We have reviewed the materials prepared by the government to government consultation on the Hoover Dam Bypass Project and concur that consultation was held in an exemplary manner.”

Pennsylvania Department of Transportation

Federal Highway – Pennsylvania Division Intertribal Summit, 2003 [PDF 1.16mb].   In September 2003, the Pennsylvania Division of the Federal Highway Administration (FHWA), in cooperation with the Pennsylvania Department of Transportation (PENNDOT), hosted an Intertribal Summit on Section 106 issues. The report on the summit serves as a primer on organizing an intertribal summit, providing information on logistics, costs, protocols, format, etc. The primary goal of the summit was to establish a foundation for future consultation among non-resident federally-recognized tribes (with ancestral lands in Pennsylvania), the Pennsylvania FHWA and PENNDOT.  The report also includes information on similar tribal summits that have been held across the country (in Iowa, Idaho, Minnesota, New Mexico, and Washington State). In response to the intertribal summit, the Pennsylvania FWHWA newsletter and PENNDOT have developed a newsletter that summarizes the results of three intertribal meetings held in Wisconsin and Oklahoma. View the Winter/Spring 2005 Issue (3) [PDF 387kb].

PENNDOT has also developed interim guidelines for tribal consultation [PDF 67kb].   Fourteen federally recognized tribes have been identified as having an interest in Pennsylvania.  Developed before the Intertribal summit in 2003 (see above), the Interim guidelines establishes a protocol for consultation and includes standardized communication and response forms to streamline the consultation process.

Rhode Island Department of Transportation

The FHWA, the Rhode Island Department of Transportation, the Narragansett Tribal Historic Preservation Officer, and the Advisory Council on Historic Preservation executed a programmatic agreement that applies to transportation undertakings that have "no effect" on historic properties.

Texas Department of Transportation

“In 2002, the Texas Department of Transportation (TxDOT) formalized a programmatic agreement (PA) with the Tonkawa Tribe that will streamline its Section 106 consultation process with the Tribe. TxDOT estimates that it consults with the Tonkawa Tribe on nearly all of its approximately 1,000 projects each year. The new Tribal PA will foster more meaningful consultation as the Tonkawa Tribe can look at just those projects where they may actually have a concern.” Since Tonkawa PA was signed, TxDOT has entered into identical agreements with 14 separate tribes. TxDOT makes at point of meeting with at least one tribe every year to discuss Section 106 and NAGPRA related issues. For a copy of the TxDOT PA with the Tonkawa tribe, contact Nancy Kenmotsu at: NKENMOT@dot.state.tx.us.

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