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common ground

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

Online Archive

*  Good Faith

(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 C. Timothy McKeown

Federal consultation must be conducted in good faith; that is, in a manner that implies honesty, fair dealing, and full revelation of facts. A recent case involving the National Historic Preservation Act illustrates the good faith standard (Pueblo of Sandia v. United States, No. 93-2188).

In July 1988, the Forest Service released a draft environmental impact statement (called for by NEPA) on eight alternate strategies for managing Las Huertas Canyon in New Mexico's Cibola National Forest, including plans for picnic grounds, parking lots, and the like. Since NHPA requires land managers to consider the effect of such plans "on any district, site, building, structure, or object that is included in or eligible for the National Register," the Forest Service had mailed letters asking tribes to describe traditional sites in the project area, and how often they were used. Forest Service officials also addressed the All Indian Pueblo Council (a body of elected representatives not recognized by the federal government) and the Pueblo of San Felipe. No one came forward with the information. In the ensuing months, however, the tribes submitted two affidavits outlining general traditional uses of the canyon.

Concerned about the planned paving of a gravel road, the Pueblo of Sandia filed an administrative appeal to block it. When the deputy regional forester affirmed the decision, the pueblo filed suit in federal court. The court granted summary judgement to the Forest Service, so the pueblo appealed to the Tenth Circuit. On March 14, 1995, the Tenth Circuit ruled that the Forest Service requests, in form letters and at tribal meetings, were not reasonable efforts. "Writing a letter is not sufficient in itself," explains Forest archeologist Tom Cartledge. Because the affidavits were not discussed in consultation, the court further ruled that the Forest Service did not make a good faith effort and remanded the case back to the local jurisdiction.

The Forest Service agreed to hire an ethnographer to document historic properties in the project area. "We weren't sending the appropriate people to talk to the Indians," continues Cartledge. "There are proven techniques and methodologies for eliciting information. Your Forest archeologist may not be the right person."

Cartledge sees lack of confidentiality as an obstacle to effective consultation, even when it is done in good faith. "Confidentiality is the crux of the issue," he explains. "We have a legal process that says we'll make a reasonable, good faith effort to obtain information and then manage the resource in an appropriate fashion. Native peoples don't want us to have that information. In part it's a lack of trust, but at least in pueblo religion they also cannot disclose the information without destroying whatever powers are attached to a given location.