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common ground

Speaking Nation to Nation
Summer/Fall 1997, vol. 2(3/4)

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*  New Language for a New Partnership

(photo) Yankton Sioux delegation arrives at the White House, 1905.

"[Glacier Bay National Park] was founded in the spirit of John Muir, with a strong tradition of scientific inquiry [and] an historic focus looking only as far back as the arrival of European explorers. Perhaps it was this short-sightedness that led to many of the conflicts to come."

Wayne Howell

by Dave Ruppert

The meaning of "consultation" has shifted over the past few years from an attempt to seek "advice and comment" from tribes to a process that involves them as partners. The National Historic Preservation Act, as amended in 1992, has become a foundation for this new relationship.

The concept of consultation has taken on a number of meanings over the past few years. For some, consultation has meant sending letters of notification to tribal offices in advance of public projects such as interstate highways and the like. For others, consultation has meant formal negotiations and cooperative agreements between agencies and tribes. Of all the laws requiring consultation, perhaps none has contributed more to the confusion than the National Historic Preservation Act of 1966.

This does not mean that I find serious fault with the act regarding consultation. It is a document of its time, originally designed for purposes quite different than what we ask of it today. Its amendments, however, have attempted to keep pace with change, and when combined with other laws, offer many innovative approaches for agencies in consulting with their tribal partners.

Originally, the law's intent was to force full consideration of cultural issues in project planning and management by federal agencies. Previous laws did little to affect the course of federally funded projects as they impacted historic and archeological sites. So, the law established a structure (i.e., state historic preservation offices, the President's Advisory Council on Historic Preservation, and the National Register of Historic Places) so these resources would be considered on all federally funded projects. Agencies were instructed to comply with the law by "consulting" with state preservation offices and/or the council before approving undertakings. In essence, the law established a mechanism for agencies to consult with each other and the states. Consultation in the original law dealt exclusively with this "internal" consultation. Tribes were not considered because the act emphasized Euroamerican built environments.

But times change. Tribes found a voice in statutes that forced new meaning to consultation, making it clear that they wanted more say in the management of tribal resources on public and trust lands. The 1992 amendments to NHPA shifted consultation from an internal to an external focus. As a result, the law now emphasizes training, for tribes as well as federal employees, and grants for tribes. Section 110, as amended, instructs agencies to consult not only with state preservation offices but with Indian tribes and Native Hawaiian organizations before undertaking any "significant action." The act also bows to NAGPRA in recognizing the need to consult with tribes regarding any "property" as defined by that law.

The amendments go on to allow tribes to establish their own preservation offices (tribal historic preservation offices, or THPOs). And the law now recognizes that cultural properties need not be historic buildings or archeological sites, but can be areas or sites of significant cultural or religious importance to tribes, which can be nominated to the National Register.

When combined with other statutes, the provisions of NHPA provide a new meaning to consultation. And, the implications are not lost on tribes.

The act's amendments inject tribes into the broad federal/state relationship created in 1966. With the establishment of THPOs, they have a real voice. Under amendments to the Self Determination Act, tribes can contract with Interior Department agencies to provide services on non-trust federal lands, which may well include aspects of management once the sole purview of the agencies themselves. Combine all of this with NAGPRA's emphasis on tribal ownership and control, and it is clear that the concept of consultation goes far beyond seeking "advice and comment."

All of this leads to a simple conclusion. The meaning of consultation has changed dramatically. But the change has largely resulted from tribal efforts to take more control of what they consider to be their heritage. Consultation no longer means letters of notification or even follow-up phone calls or visits to tribal offices. It has taken on more the character of "negotiation" with a sovereign entity. Tribes have asked for, and largely received, a place at the decision-making table. Increasingly, they ask federal agencies for more training, more monies to establish THPOs, and more co-managing agreements, not just on the treatment and disposition of cultural resources, but for educational programs as well.

The term "consultation" does not quite describe this new relationship. What has emerged is a kind of mutual responsibility, a mutual authority that has transformed how both agencies and tribes operate. There is a need to recognizeŚwith new languageŚthe full dimensions of this new partnership.

For more information, contact Dave Ruppert, National Park Service,12795 West Alameda Parkway, Denver, CO 80225, (303) 969-2879, fax (303) 969-2644, e-mail dave_ruppert@nps.gov.