The Fly in the Ointment:Consultation Under Section 106 and Other Laws

Related to Historic Preservation

Peacekeeper Conference, 1985

Under Section 106 for NHPA

If an adverse effect will occur, the agency responsible for the federal undertaking consults with the SHPO and others in an effort to find ways to make the undertaking less harmful.

Others who are consulted, under various circumstances, may include:•Local governments •Indian tribes•Property owners •Other members of the public•Advisory Council on Historic Preservation

Matthew King (Noble Red Man) and Air Force Officers at Peacekeeper Conference 1985

Consultation is designed to result in a Memorandum of Agreement (MOA)

The MOA outlines measures agreed upon that the agency will take to reduce, avoid, or mitigate the adverse effect.

In some cases, the consulting parties may agree that no such measures are available, but that the adverse effect must be accepted in the public interest. If consultation proves unproductive, the agency or SHPO, or the Council itself, may terminate consultation.

The agency must submit appropriate documentation to the Council and request the Council's written comments.

Inhanktonwan (Yankton Sioux) delegation in Washington, DC, 1912

Problem 1: Identifying the Relevant Stakeholders

Definition in the law and regulations

Self-identified

Communities of interest

Fools Crow blessing the consultation at the Peacekeeper Conference, 1985

How do you know if you have the right communities?

Competing interests

Orser & Singleton experiences in Irish and African American communities

Factions within a single community

Traditional vs. “progressive”

Native American Consultation

The most problematic in many ways

The 1992 Amendments to (NHPA) require all Federal agencies to consult with Indian Tribes or Native Hawaiian if undertakings may affect properties of traditional religious and cultural significance on or off Tribal lands.

The Section 106 regulations (36 CFR 800) implementing the NHPA were revised on January 11, 2001 to reflect this change. Section 36 CFR 800.2(c)(2)(ii)(A) states that

"the agency official shall ensure that consultation in the Section 106 process provides the Indian Tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects."

Specialized Training in Native American Consultation

What Tribes need to be consulted?

Federally recognized Tribes or Native Hawaiian organizations:

• that attach religious and cultural significance to properties that may be affected by Federal-aid undertakings on or off Tribal Lands.

•that no longer reside in a given area, but may still have ancestral affiliations to a place.

•that have been mobile both historically and ancestrally and

•that may very well have places that are important to them in locations where they may not have physically resided for hundreds or even thousands of years.

How do I know if a tribe or groups is federally recognized?

•A list of federally recognized tribes is available at www.doi.gov/bureau-indian-affairs or http://www.indians.org/Resource/FedTribes99/fedtribes99.html.

•For a list of non-recognized tribes see http://www.kstrom.net/isk/maps/tribesnonrec.html .

Identifying all the Tribes that may have an interest in an area

Documentary sources: ethnographies, field records, histories, experts at local universities, and oral accounts

No single source is comprehensive.

The SHPO or other THPOs

The Native American Consultation Database (NACD) geared toward NAGPRA, but good for other issues

MAPS: GIS Windows on Native Lands, Current Places, and History provides maps on current and ancestral locations of Indian lands.

Indian Land Cessions in the United States is also an invaluable resource on historic Indian land areas.

Consultants

Making formal contact with Tribes: Ideal Agency officials should initiate contact with Tribes at the highest

level.

Government-to-government relations

Tribes are sovereign nations and must be shown the same respect and formality as any other independent nation.

The contact is generally the Chief, Chairperson, Governor, or President of the Tribe

The agency official needs to consult with individuals designated by the Tribe or Native Hawaiian organization for this purpose.

Once a Tribe has been contacted, protocols for consultation can then be developed through discussions and meetings with individual Tribes.

These may differ from Tribe to Tribe or Native Hawaiian organization as each may have very different belief systems, worldviews, and cultural protocols.

Making formal contact with Tribes: Real

Relatively few THPOs

Heritage offices are vastly overworked

White Earth [MN] Band example

Few have research protocols

NPS/Effigy Mounds Cultural Affiliation project example

Use networks and first hand contacts

Appropriate Consultation Methods

There is no single solution!

Letters: into the black-hole of tribal governments

If no response, follow up calls, e-mails, meetings

Usually necessitates a trip to the tribe

Shows that you are serious and respectful

Useful for other reasons:

Tribe may not wish to be notified about every project that comes up in a given area

Power Relationships in Consultation

Consultation is rarely a meeting of equals.

Status and power determine the effectiveness of each party in consultation

A person or group requesting the consultation can have the financial power to initiate a proposal

A person or group being consulted can have the power to prevent the realization of that proposal, either through aggressive action (vocal opposition to the proposal) or passive-aggressive action (delaying tactics or lack of support of the action).

See Watkins (2001), 'The Powers That Be': Power, Role, and Interaction in the Consultation Process for ways to decrease power relationship issues―most involve cultural sensitivity

Privileged informationBelief systems require that the location and even the existence of traditional religious and cultural properties not be divulged.

Vital to work with Tribes to identify sensitive locations while respecting tribal desires to withhold specific information about these types of sites.

Section 304 of the NHPA permits Federal agencies to withhold sensitive information from public disclosure.

Issues surrounding confidentiality concerns can also be included in an agreement document between the Tribe and Federal Agency as provided under Section 800.2(c)(2)(ii)(E) of the regulations.

See National Register Bulletin 29, Guidelines for Restricting Information About Historic and Prehistoric Resources

Boiling Springs TCP, first TCP in Minnesota, sacred to the Dakota

Remember:

Consultation may be one of the most difficult parts of CRM.

Notification is not consultation!

There are no “silver bullets” or easy formulas for consultation.

It should go without saying, but: Always be humble when consulting.

Always be respectful when consulting.

Always be honest when consulting.