What is the legal basis for consulting with tribal governments?
The need and responsibility for Federal Transit Administration to consult with Indian Tribes is based on the Federal trust relationship. Numerous laws, regulations and executive orders reinforce this fundamental responsibility to consultwith and consider Indian Tribe interests. These include:
- Implementing Regulations of the National Environmental Policy Act, 40 CFR Parts 1500-1508
- Implementing Regulations of the National Historic Preservation Act, 36 CFR Part 800
- Native American Graves Protection and Repatriation Act, 25 U.S.C. § 3001 (1990)
- Executive Order 13175, Consultation and Coordination with Indian TribalGovernments (2000)
- Memorandum for the Heads of Executive Departments and Agencieson Tribal Consultation. (2009)
- Department of Transportation programs, Policies, and Procedures AffectingAmerican Indians, Alaska Natives, and Tribes, DOT 5301.1. (1999)
- U.S. Department of Transportation Tribal Consultation Plan (2010).
On what kinds of proposed projects does FTA consider consulting with tribal governments?
Tribal consultation should be considered for all classes and types of NEPA actions, including Categorical Exclusions (CEs) that may affect tribal lands or interests. Native Americans are minorities in many communities, raising the need to investigate environmental justice issues.
Does the absence of tribal land make consultation unnecessary?
The National Historic Preservation Act Section 106 regulations (36 CFR Part 800.15) direct federal agencies to make a “reasonable and good faith” effort to identify whether there would be tribal interest in an undertaking. A few resources for identifying tribal groups:
- Request advice from the State Historic Preservation Office or other cultural resource specialists in the state or region for a list of tribes.
- Ask Indian tribes through consultation letters if they are aware of other Indian tribes that may have current or historic interest in the project area.
- Assess tribal interest in previous projects in the project vicinity
- Ask the district Federal Lands Highway office or other federal agencies involved in the project area regarding Indian tribes they have worked with on other projects.
- Review the U.S. Department of Housing and Urban Development’s Tribal Directory Assessment Tool website. The tool provides a county by county list of Indian tribes that may have current and historical ties to particular areas.
- National Park Service’s Native American Consultation Database (NACD).
- Scan information available from national and regional intertribal organizations such as the National Association of Tribal Historic Preservation Officers, National Congress of American Indians, the United South and Eastern Tribes, and others.
- Many Indian tribes have public websites, and there are a handful of online tribal publications that may be useful.
Document all efforts to identify Indian tribes that may have potential interest in a proposed transit project.This effort could be briefly referenced in a sentence or two in NEPA documents. Any materials sent to the SHPO and Advisory Council on Historic Preservation for adverse effect findings should include a description of consultation with Indian tribes and any efforts to identify Indian tribe interest. Also, some SHPOs request copies or summaries of tribal consultations.
How and when does FTA initiate consultation with an Indian tribe?
FTA works with grant applicants to identify tribal interests during planning and project development. It also helps under the federal authorities cited above building issues.
Consultation with Indian tribes should be included in the Coordination Plan (The Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) Section 6002) for EIS and EA projects. Outreach to the Indian tribes should come at the very beginning of federal involvement during NEPA scoping or early scoping. This initial contact can invite the tribal government to be included as a participating agency in the NEPA process and should acknowledge requirements arising under Section 106, as well as other government-to-government responsibilities. Note that the consultation obligation may not be delegated to the grantee without tribal consent.
Unless FTA receives a letter or form or other communication back from the Indian tribe specifically stating that it has no interest in the project or area, FTA and the tribal group should be included in the distribution of the EA or EIS and other general mailings on the project. Tribal consultation efforts should be discussed in the environmental document.
What about non-federally recognized tribes?
Exists a distinction between federally recognized Indian tribes and those who are not. Federal recognition signifies that the U.S. government acknowledges the political sovereignty and Indian identity of a tribe and from that recognition flows the obligation to conduct dealings with that tribe’s leadership on a “government-to-government” basis. When federally recognized tribes speak of “government-to-government” consultation, they are often referring to consultation between a designated tribal representative and a designated representative of the federal government.
A side from the government-to-government responsibilities, however, and aside from the NHPA’s direction to consult with interested tribal governments, Section 106 requires FTA to consider consulting with parties that have a demonstrated interest in the potentially affected area/resource. This can include non-recognized tribes. While non-federally recognized tribes do not have a statutory right to be consulting parties in the Section 106 process, FTA may invite them to be an “additional consulting party” if they have a “demonstrated interest” – for example, if they can demonstrate ancestral ties to the area of the undertaking, or show that they are concerned with the undertaking’s effects on historic properties for other reasons. In some cases, members of a non-federally recognized tribe may be direct descendants of indigenous peoples who once occupied a particular Native American site to be affected by the undertaking, or they might be able to give FTA additional information about historic properties that should be considered in the review process.
U.S. Department of Transportation, Resources for Tribes and Tribal Governments
Implementing Regulations of the National Historic Preservation Act (36 CFR Part 800)
Federal Highway Administration (FHWA), Tribal Transportation Planning
Advisory Council on Historic Preservation (ACHP), Consulting with Indian Tribes in the Section 106 Review Process
White House – Indian Affairs Executive Working Group, List of Federal Tribal Consultation Statutes, Order, Regulations, Rules, Policies, Manuals, Protocols, and Guidance (January 2009)
Council on Environmental Quality (CEQ),Consultation and Coordination with Indian Tribal Governments (Executive Order 13175 )
U.S. Department of Transportation Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes, DOT 5301.1 (November 16, 1999)
American Association of State Highway and Transportation Officials (AASHTO) Center for Environmental Excellence, Tribal Consultation
Bureau of Indian Affairs, Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs and 2010 Supplement to IndianEntities Recognized List