Federal and tribal representatives consult at archeological resources in Grand Canyon.
The Nationwide Programmatic Agreement (PA) signed in 2008 places particular emphasis on consultation. Consultation is the process of seeking, discussing, and considering the views of others, and, where feasible, seeking agreement with them on how historic properties should be identified, evaluated, and managed. It is built upon the exchange of ideas, not simply providing information. Consultation should always include all interested parties, even though specific consultation requirements and procedures will vary depending on the projects and programs, the nature of historic properties that might be affected, and other factors. See the Consultation sections of the NPS Management Policies (pdf).
The National Historic Preservation Act (NHPA) and 36 CFR 800, the Advisory Council on Historic Preservation (ACHP) regulations implementing Section 106, specify that an agency's preservation-related activities be carried out in consultation with other Federal, State, and local agencies, Indian tribes, Native Hawaiian organizations and the private sector. In addition to having a formal role under the NHPA, State Historic Preservation Officers (SHPOs) and Tribal Preservation Officers (THPOs) can assist in identifying other interested parties, as well as sources of information. The PA outlines specific points for consultation to occur. They include when the park implements the PA, biennial meetings, and planning for undertakings. Consultation may be necessary and appropriate at other times, such as to resolve controversy when the undertaking involves a property of particular interest to any of the consulting parties.
Each Superintendent will consult with outside parties interested in the park's cultural resources or in proposed NPS actions that might affect those resources, and provide them with opportunities to learn about and comment on those resources and planned actions. Whether consulting on a specific project, planning effort, or on broader agency programs, the NPS should:
- make its interests and constraints clear at the beginning;
- make clear any rules, processes, or schedules applicable to the consultation;
- acknowledge others' interests and seek to understand them;
- develop and consider a full range of options; and,
- try to identify solutions that will leave all parties satisfied.
Consultation should include broad efforts to maintain ongoing communication with all those tribal, public, and private entities that are interested in or affected by the park's activities and should not be limited to the consideration of specific projects. Consultation should include long-term park planning as well as individual projects.
Conduct consultation early in the planning stage of any undertaking that might affect historic properties. Although time limits may be necessary on specific transactions carried out in the course of consultation (e.g., the time allowed to respond to an inquiry), there should be no hard-and-fast time limit on consultation overall. Consultation on a specific undertaking should proceed until agreement is reached or until it becomes clear to the agency that agreement cannot be reached. Section 106 consultation should be coordinated, when appropriate, with the public consultation needs for other compliance activities such as the National Environmental Policy Act (NEPA).
The NPS should inform other agencies, organizations, and the public in a timely manner about its projects and programs, and about the possibility of impacts on historic resources of interest to them. However, the NPS cannot force a group to express its views, or participate in the consultation. These groups also bear a responsibility, once they have been made aware that the NPS is interested in their views, to provide them in a suitable format and in a timely fashion.
Consultation with Native Peoples
The United States government has a government-to-government relationship with federally recognized tribes, Alaskan Native groups, and Native Hawaiian organizations.
Within the NPS Management Policies the definition of Native American or American Indian wavers in language but generally includes culturally affiliated American Indian tribes, Alaska Natives, Native Hawaiians, and other individuals and groups. The definitions of Indian tribe, Native Hawaiian organization, and Native Hawaiian are clearly made in 36 CFR 800. (See the Glossary.) It is important to note that the definition is broadly based on those eligible for the special programs and services provided by the United States to Indians because of their status as Indians. As a result, many more Native American entities than those that are federally recognized are eligible.
The PA Toolkit includes a checklist to help parks organize consultation with tribes. The checklist can be adapted to the needs of a park, a project, or a series of communications. See the Tribal Consultation Checklist (doc).
The PA and Tribal Lands
The unique provisions regarding tribal lands are important to know. Tribal lands are defined by the regulations implementing Section 106 as "All lands within the exterior boundaries of any Indian reservation and all dependent Indian communities" (36 CFR 800.16(x)). Specifically, when a park is located partly or wholly within the boundaries of tribal lands, and the tribe is not a signatory to the PA or a park specific agreement, any undertaking that may occur on those tribal lands requires consultation with the tribe and/or THPO in accordance with 36 CFR Part 800. As such, the Streamlined Review Process and provisions described in Section III of the PA are not applicable. Other NPS responsibilities in the PA, such as consultation and biennial meetings, still apply.
If a tribe chooses to sign the PA, the tribe must provide written notification to the Director that has been signed by the THPO, Indian tribe, or designated representative of the tribe. Once the Director receives the written and signed notification, the provisions of the PA will be applicable to undertakings occurring on lands where a park is located partly or wholly within the boundaries of the affiliated tribal lands. At the time the PA was executed on November 14, 2008, there were no tribal signatories.
Development of Agreements
Superintendents and Native American groups are encouraged to develop consultation protocols, memoranda of agreement, and programmatic agreements together. Superintendents will negotiate the agreements with federally recognized Indian tribes, THPOs, or Native Hawaiian organizations. Such agreements may be independent of or supplement the Nationwide PA. They may be specific to a project, plan, or park activity. They might set forth specific consultation protocols between the park and a specific tribe or group of Native peoples. Superintendents will provide a copy of all agreements to the Regional Section 106 Coordinator, the ACHP, and appropriate SHPO/THPO in accordance with 36 CFR 800.2(c)(2)(ii)(E).
Government-to-government consultation takes place at the Superintendent level. Consultation is initiated during planning and prior to undertaking an activity, program, or project that may affect historic properties of significance to federally recognized Indian tribes, Alaska Native groups, and Native Hawaiian Organizations. It is essential to maintain an ongoing relationship with THPOs and/or staff of federally recognized Indian tribes and Native Hawaiian Organizations.
See Executive Order 13175: Consultation and Coordination with Indian Tribal Governments, Director's Order 71A: Government-to-Government Relationships with Tribal Governments, and the pertinent sections of the NPS Management Policies (pdf). Another source of assistance is Historic Preservation and Consultation with Native Americans, (available here from the Federal Preservation Institute.
Communication transpires between the park and each individual federally recognized tribe, Alaska Native Group, or Native Hawaiian Organization. Communication during tribal consultations may be in person, in writing, over the telephone, or by electronic means. Parks and tribes must know who to contact within the other entity in order to direct written or electronic correspondence, schedule face-to-face meetings and site visits, and compile documentation of the consultation process.
Protocols for written communication:
- A written Invitation to Consult initiates formal consultation.
- The Superintendent signs park correspondence to tribes, tribal cultural resource coordinators/representatives, and THPOs for the purposes of consultation under 36 CFR 800.
- Direct written correspondence to the Tribal Government head, Chief, Governor, Council President, and/or Chairman. It can be very helpful to send copies to tribal cultural resource person(s), as well.
- Copies of any documents intended for review during face-to-face consultation will be provided in advance of the consultation meetings. A summary will be developed following each of the face-to-face consultation meetings.
- Follow up hard copy mailings with a fax and/or phone call to make sure materials are received.
Regardless of tribal participation in the face-to-face meetings, correspondence and accompanying enclosures related to the meetings should be sent to each interested tribal entity.
Telephonic or Electronic Communication
The park should maintain a record of all consultation, including telephonic or electronic communication. The Superintendent will ensure a copy of all such documentation is provided to the consulted federally recognized tribes, on request. Written documentation is preferred.
Face-to-face meetings can be with individuals or groups. Conduct the meeting in accord with NPS and tribal protocols and practices.
The Superintendent must provide the greatest opportunity for full tribal participation. The location and setting must be mutually agreed upon.
The Superintendent must coordinate with tribal representatives to:
- Identify topics to address and solicit issues of tribal importance,
- Program sufficient time to discuss each item,
- Publish a proposed agenda, and
- Provide a proposed itinerary.
The Superintendent is responsible for attending formal government-to-government meetings. If the Superintendent must delegate meeting attendance to someone else, he/she should make clear who is formally representing the park. The Superintendent or his/her designee may chair the meetings and may facilitate discussions during the meeting.
In order to be most beneficial, consultation may require a site visit to the project area. In addition, the Superintendent should determine whether attendees wish to participate in a site visit for other cultural purposes. Arrangement for a site visit should be scheduled in advance. Participation should be determined well in advance of the consultation meeting so that appropriate and knowledgeable park staff may accompany tribal representatives. Logistical arrangements to consider include transportation, maps, and background data. Site visits and related discussions should be documented. Tribal protocols should be considered whether the visit is for purposes of reviewing the 106 action or for other cultural purposes.
Formal documentation of face-to-face consultation meetings should be a topic of consultation preferably in the form of a summarized written record. A verbatim transcript may be appropriate given the nature of the discussion. A copy of all written records should be sent to all participating parties and those invited but not in attendance following review of the draft materials by the consulting tribes. The NPS should maintain requested confidentiality of information to the fullest extent available under Federal law.
Consultation with the Public
Consultation with the public is a requirement in the Section 106 process as defined in 36 CFR Part 800.2(d). Meeting the Section 106 and 36 CFR 800 consultation requirement, however, does not necessarily mean that the relevant NPS Management Policies, Director's Orders, or other requirements have been met. Director's Order 75A, for example, specifies that the NPS will go beyond the minimum required by law.
The "public" is not well defined in the regulations, beyond private persons, businesses or groups having an interest in the undertaking, so the park must determine the appropriate "public" for each undertaking. Common examples of what constitutes the "public" include (but are not limited to):
- neighboring or local residents and local businesses,
- local or associated organizations such as local preservation groups, recreational organizations, park "friends" groups, or park concessioners,
- individuals or groups who regularly use park resources,
- groups that represent affiliated areas, cooperating organizations, and gateway communities,
- groups or agencies that share resources with park units, and
- traditionally associated peoples.
NPS efforts to inform the public about its projects and programs and about the possibility of impacts on historic resources must be carried out in a manner consistent with the provisions of Section 304 of the NHPA, which calls for withholding from disclosure to the public information on the location, character, or ownership of a historic resource where such disclosure may:
- cause a significant invasion of privacy;
- risk harm to the historic resource; or,
- impede the use of a traditional religious site by practitioners.
Because national parks embody resources and values of interest to a national audience, efforts to reach out and consult must be national in scope. However, the NPS needs to be especially mindful of consulting with traditionally associated peoples, meaning those whose cultural systems or ways of life have an association with park resources and values that predates establishment of the park. Traditionally associated peoples may include park neighbors, traditional residents, and former residents who remain attached to the park area despite having relocated. Examples include African Americans at Jean Lafitte NP & P, Asian Americans at Manzanar NHS, and Hispanic Americans at Tumacacori NHS.
In particular, traditionally associated peoples should be consulted about:
- proposed research on and stewardship of cultural and natural resources with ethnographic meaning for the groups;
- development of park planning and interpretive documents that may affect resources traditionally associated with the groups;
- proposed research that entails collaborative study of the groups;
- identification, treatment, use, and determination of affiliation of objects subject to the Native American Graves Protection and Repatriation Act (NAGPRA);
- repatriation of Native American cultural items or human remains based on requests by affiliated groups in accordance with NAGPRA;
- planned excavations and proposed responses to inadvertent discoveries of cultural resources that may be culturally affiliated with the groups;
- other proposed NPS actions that may affect the treatment of, use of, and access to cultural and natural resources with known or potential cultural meaning for the groups; and
- designation of National Register, National Historic Landmark, and World Heritage Sites with known or potential cultural meaning for the groups.
Involving all the players early in the process builds trust, uses the process the way it was intended (to seek consultation rather than rubber stamping a decision), and ensures a multidisciplinary approach to the project or plan. But, most importantly, working together early ensures that decisions are made using all the tools and talents available to the park, making for better decisions and the best possible options for protecting the park's historic resources. Early involvement also helps everyone who has an interest in the project understand how and why decisions were made and all the factors that went into making those decisions. Ultimately, early consultation avoids headaches, problems and detours as the project proceeds.