Consultation and Compliance
Consultation and Compliance
Then and Now
Abstract and Keywords
Today most people view the land base (and therefore area of interest) of the Seminole Tribe of Florida as the relatively small five reservations dotting the landscape of South Florida. This misleading demographic situation masks the sovereignty of a people who historically lived throughout a large portion of southeastern North America. Responsibilities for consultation with relevant agencies within the aboriginal, ancestral, and ceded lands of the Seminole Tribe of Florida is therefore no small task as this land base composes a large portion of nine individual modern states. With a staff of just two people who work back to back out of a single office, the compliance team must sift through the 99 percent of projects that do not impact sites of significance to the Tribe, in order to find the 1 percent that do.
Bradley M. Mueller is presently the Compliance Review Supervisor for the Seminole Tribe of Florida Tribal Historic Preservation Office (STOF THPO). Prior to his current posting, he was an archaeologist with the THPO Tribal Archaeology Section (TAS). Mueller earned his B.A. in general science from Webster University in St. Louis in 1986. In 1987, he began graduate studies in physical anthropology–primatology at Tulane University of Louisiana before relocating back to St. Louis to pursue a developing interest in archaeology. In 1991, he was awarded an M.A. in anthropology from Washington University in St. Louis.
Mueller’s understanding of archaeology and cultural resources is heavily influenced by his twenty-plus years of experience in contract archaeology/ cultural resources management. His first field project, undertaken while he was still attending Washington University, consisted of Phase II testing of a small prehistoric site in eastern Missouri. During the intervening twenty-four years, Mueller has participated in Phase I, II, and III investigations in various capacities, from field technician to project manager. He has worked extensively in the Southeast and Midwest and along the Gulf Coast, and less extensively in the Southwest, Great Basin, Plains, and Northeast. This work was performed for universities, for private companies (large and small), and for Native American tribes (briefly for the Navajo Nation and now for the STOF). As field director and project manager, Mueller has contributed to over 160 technical reports as author, coauthor, illustrator, or editor.
In his current capacity as Compliance Review Supervisor, Mueller draws on his knowledge of the types of culturally important resources that can be encountered in the field, his understanding of the appropriateness of employing specific methodologies to avoid or investigate these resources, and his sensitivity to the advice, counsel, and direction provided by Tribal members. His understanding of federal preservation law and the rights and responsibilities of Native American tribes under those laws continues to evolve.
The National Historic Preservation Act (NHPA) (Pub. L. No. 89–665; 16 U.S.C. §470 et seq.) was signed into law on October 15, 1966. The 1966 act created the Advisory Council on Historic Preservation (ACHP), the National Register of Historic Places (NRHP), and the State Historic Preservation Offices (SHPOs). The law requires that federal agencies evaluate the impact (p.257) of all federally funded or permitted projects on “historic properties,” and it provides a process, the Section 106 process, by which these requirements can be met. Historic properties refer to districts, sites, buildings, structures, and objects determined to be “significant” in American history, architecture, archaeology, engineering, or culture. These properties may date to either prehistoric or historic time periods, with historic period properties usually having to be at least fifty years old (there are exceptions). Generally regarded as the most effective preservation legislation in the United States, the act does not directly guarantee the preservation of any particular property, but it does establish a process that requires, among other things, a dialogue (consultation) between interested parties over the treatment of important cultural resources (that is, historic properties). Among others, interested parties include Native American tribes and Native Alaskan villages.
Although NHPA 1966 established SHPOs and the position of State Historic Preservation Officer, it was not until the act was amended in 1992 that Indian tribes were allowed to establish THPOs and Tribal Historic Preservation Officers and to assume the role of SHPOs on tribal lands. It is important to note that some tribes had effectively, if not “officially,” already established historic preservation offices and assumed many of the roles of a historic preservation officer prior to the 1992 amendments. The role of tribal consultant for Section 106 purposes may or may not be the responsibility of a THPO. Tribes that do not currently have federally recognized THPOs are still legally entitled to participate in the 106 process and may designate a person or persons of their choosing (tribal or nontribal) for consultation. The designated contact could be a tribal Chairperson, Chief, Elder, Medicine Person, and so forth.
On October 3, 2006, the Tribal Historic Preservation Officer of the STOF assumed the duties previously performed by the SHPO (see Backhouse, this volume). From its inception, the STOF THPO has divided consultation responsibilities between two entities. Currently, on-reservation consultation is performed by the Deputy Tribal Historic Preservation Officer, while off-reservation consultation is performed by the THPO Compliance Review Section (CRS). Although the STOF allows the THPO to conduct consultation on its behalf, guidance from Tribal government and Tribal cultural advisors is routinely solicited, especially on more complicated or problematic issues. The Tribal Chairman can, and does, consult directly with federal agencies at his discretion. While consultation over routine matters generally occurs at a fairly rapid pace, especially sensitive or complex consultations can be lengthy in order to ensure that the Tribe has time to develop its position and to make (p.258) its position known to the THPO. Federal agencies and other nontribal entities often have difficulty dealing with the length of time it may take a tribe to “develop its position” and to respond to a request for comments. It is important for these nontribal groups to keep in mind that many of the issues that tribes have to deal with, especially issues involving the relocation or reburial of human remains, have no historical precedents within the tribe; it was never expected that ancestors would be excavated and reinterred. Tribal consideration of these issues and consensus building can be long, difficult, and painful.
The CRS is one of four sections within the THPO. The other three sections include Archaeometry, Collections, and Tribal Archaeology. The THPO can also draw on the expertise of an Architectural Historian who is on the staff of the Ah-Tah-Thi-Ki Museum. All of these sections report to the Deputy Tribal Historic Preservation Officer, who in turn reports to the THPO. Staffing levels within the CRS have varied over time as the section responds to changing demands and improved efficiencies. Currently, the CRS is comprised of two individuals, a Compliance Review Supervisor and a Compliance Review Specialist. In addition to its primary responsibility of conducting Section 106 off-reservation consultation, the section also performs other duties, including:
• conducting research, both document-based and ethnographic, on cultural sites of importance to the STOF;
• conducting research on the off-reservation Area of Responsibility (AOR);
• maintaining an off-reservation Geodatabase;
• participating in the STOF THPO Native American Graves Protection and Repatriation Act (NAGPRA)/Florida Statute 872.05 Committee;
• participating on the STOF Tribal Register of Historic Places (TRHP) Committee;
• non-Section 106 consulting with the state of Florida SHPO concerning statute 872.05 issues (unmarked human burial law);
• reviewing and editing on-reservation TAS reports for Section 106 sufficiency;
• reviewing and editing on-reservation reports for STOF Cultural Resource Ordinance (C-01-16) sufficiency; and
• other tasks as assigned.
Since its Tribal inception in 2002 and its National Park Service recognition in 2006, the STOF THPO has committed itself to strengthening departmental capacity, defending Tribal interests and Tribal sovereignty through the consultation process, and improving the timeliness and the quality of these consultations. The remainder of this chapter is devoted to examining three topics directly related to the ability of the CRS to assist the THPO in conducting its business and fulfilling its Tribal mission. These topics are: dealing with the increasing volume of consultation requests; delineating a Tribal AOI; and providing a Tribal perspective on the consultation process.
Requests for consultation received by the CRS have steadily increased over the years. These requests originate with multiple (mostly federal) agencies and encompass a wide geographic area. Information concerning the quantity of documents received and processed by the CRS and the variety of agencies generating these documents is presented below in the section entitled “Consultation Demands.”
Despite advances that the CRS has made in processing consultation requests and managing its workflow and its documents database, several challenges still exist that affect its ability to consult successfully. One of the challenges to providing quality and timely consultation originates with the STOF’s geographically large AOI. Large AOIs tend to result in large numbers of consultation requests, which challenges the review capacity of the CRS staff. Issues related to how the STOF determines its AOI will be examined in the section entitled “Area of Interest versus Area of Responsibility.”
The way in which formal consultation is initiated by federal agencies, as well as differing attitudes on the nature and extent of how the consultation process should be conducted, creates additional challenges for the CRS. These issues are commonly discussed by THPO staff and other Tribal representatives attending annual meetings and conferences. Under Section 106, consultation is the responsibility of the lead federal agency. However, not only is there a lack of uniformity between agencies, in many cases there also appears, from an etic perspective, to be a lack of consistency within agencies. Finally, differing views between what the THPO expects out of consultation versus what lead agencies expect, and are willing to do during consultation, create discrepancies between the goals and needs of the consulting parties. The section entitled “Consultation—A Tribal Perspective” examines this issue.
Records management within the Compliance Review office has evolved through several stages, originating with “little to none” (piles of paper on a desktop or in the corner of an office) to paper documents stored in filing cabinets and in cardboard boxes (also sometimes in the corner of an office), to electronic documents stored in searchable databases. Each project notification, consultation request, or other important document received by the CRS is assigned a unique THPO number. In 2006–2007, Paul Backhouse, then Chief Data Analyst for the Archaeometry Section, developed and implemented a Microsoft Access–based system referred to as the “Incoming Correspondence and Tracking Database” (ICTD). The first document was entered into the ICTD on March 26, 2007, and was assigned THPO #000007. The last ICTD entry, THPO #011025, was made more than five years later on November 15, 2012.
Recognizing the ICTD’s limitations, the THPO had conducted a search for a more functional document management system, and on November 19, 2012, the CRS transitioned to a proprietary system developed by Perceptive Software called ImageNow. ImageNow creates documents that are 100 percent searchable (not limited to “key words”), stored in a single database, and can be inserted into a user-defined “work-flow.” This work-flow can be used to alert designated individuals to the presence of documents that require their attention or action. Over the five-plus-year period that the ICTD was in use, 11,018 THPO numbers were assigned. Although the correlation is not exact, this number roughly corresponds to 11,018 project notifications or consultation requests; this represents an average of almost 2,000 notifications/ requests per year. The number of THPO numbers assigned does not correspond to the number of pages of documents entered into the ICTD. Each THPO number can, and usually does, have several related documents subsumed under it, and each of these documents can, and usually does, consist of multiple pages of text and/ or graphics.
A similar analysis can be done for ImageNow documents. Between November 19, 2012, and June 30, 2015, over 6,152 documents had been entered into the ImageNow database. This averages to slightly over 2,400 documents per year and, as with the ICTD database, represents tens of thousands of pages of material.
In 2013, former THPO Compliance Analyst Alison Swing conducted a more detailed analysis of the ICTD database in preparation for a Southeastern Archaeological Conference presentation. Her analysis focused on “new (p.261) project” requests received per year, which differs somewhat from either the amount of correspondence (documents) received or the number of THPO numbers assigned. Swing found that from March 2007 to December 2007, approximately 1,315 project requests were received. If ICTD had been in place for all of 2007, the count was projected to be 1,753. For subsequent years, 1,118 requests were logged for 2008; 2,279 requests for 2009; 2,716 requests for 2010; 1,872 requests for 2011; and 1,957 requests for 2012. ICTD was discontinued in mid-November 2012. A projected number of project requests for all of 2012 would be 2,237.
The important point here is that the CRS staff, which has varied between two and three individuals, must maintain a database of tens of thousands of pages of documents while sorting through 2,000 to 3,000 consultation requests annually in order to identify Tribally important projects and to meaningfully consult on those important projects within prescribed review deadlines.
The challenge then is to be able to successfully “triage” the incoming documents and to determine which of the projects or undertakings are of greatest importance to the Tribe. Undertakings may range in scale from a single Housing and Urban Development (HUD) funded house renovation to a several-thousand-acre U.S. Army Corps of Engineers (USACE) Everglades water project. In these examples, the decision over which project to devote the most time to is obvious—the project with the greatest potential to impact cultural resources important to the STOF, that is, the USACE project. But between the two extremes is an enormous range of undertakings that transition gradually from one end of the spectrum to the other—a new Federal Communications Commission (FCC) permitted cell tower, a 10-acre HUD funded housing development, a 100-acre Natural Resource Conservation Service (NRCS) funded Environmental Quality Incentives Program (EQIP) project. With limited review resources and time—and it is likely that every Compliance Review Section of every SHPO/THPO has limited resources—the CRS has to make decisions daily on what to review and what not to review.
Unlike state SHPOs, who, because of their legal obligations under Section 106, have less flexibility in deciding in which consultations they choose to participate, the STOF CRS deals primarily with off-reservation undertakings and has considerably more flexibility. The CRS gets to decide on what it focuses, but since the CRS serves the Tribe, these decisions are designed to reflect the Tribal consensus. Understanding the Tribal consensus requires THPO’s own “internal” consultation process with Tribal representatives. The danger in choosing not to provide comments on an undertaking or respond (p.262) to a request for consultation is the possibility of overlooking something important to the Tribe. To minimize this risk, the CRS is actively engaged in researching off-reservation sites, areas, and locations that are important to the Tribe, either historically or presently. While the purpose of “triaging” consultation requests is to allow for a shift in emphasis from quantity to quality, by reducing the demand for staff resources, there are sometimes unintended consequences—recent efforts by the CRS to reduce the time spent on HUD projects were not entirely successful.
A decision was made to restrict HUD consultation to only projects that involved new ground-disturbing activities in areas previously undisturbed. This turned out to be problematic in two ways: HUD delegates its 106 consultation responsibilities to “responsible entities” (frequently municipalities or not-for-profit groups) that often lack the background, training, and skills necessary to conduct 106 consultation, or to reliably interpret the meaning of “new ground-disturbing activities”; and the “responsible entities” continued to request letters from the CRS stating our intent not to comment on their project if they had not received a response from us within thirty days of their initial consultation/ comment request. When the CRS decides to consult or provide comments on a particular consultation request, a chain of activities is set in motion, including capturing all relevant documents in ImageNow, assigning a THPO number, composing and sending a CRS response letter, and so forth. Each of these actions is time-consuming. Past experience has demonstrated that to fully process a single consultation request, even the simplest one, requires on average thirty minutes. Individually this may not seem like a great deal of time, but multiplied by roughly ten HUD requests per week, it begins adding up to significant amounts of time—time that could be devoted to more important projects. If the intent of our HUD experiment was to eliminate time spent sending “no comment” letters, it was not successful.
Area of Interest versus Area of Responsibility
A key underlying component of Tribal consultation is the concept of an AOI. Simply defined, an AOI is the geographic area over which a tribe feels it has a legitimate cultural interest. Areas incorporated into an AOI may include aboriginal, ancestral, and modern territories, and these may include lands currently belonging to the Tribe or areas ceded by the Tribe. Unlike state SHPOs whose consultation is usually restricted by political boundaries, tribal AOIs often cross state boundaries. An AOI may extend for hundreds or possibly even thousands of miles, especially in the case of displaced tribes, and encompass thousands of square miles. It is often easy for consulting agencies to (p.263) overlook the fact that the tribes they need to be consulting with may reside hundreds of miles away from an undertaking.
While not being constrained by political boundaries can be a blessing, in that it allows tribes to be actively engaged in the consultation process for all those areas they decided are important to them, it is also something of a curse. Accepting the responsibility for consulting on a 323,000-square-mile area, for example, presents significant challenges. This is especially true for the STOF THPO and the Compliance Review staff because we take our role as advocates for the Tribe and as active participants in the 106 consultation process very seriously. We won’t conduct substandard project reviews or half-heartedly engage in consultations even if we know that a SHPO, federal agency, or even another THPO may be there to catch our mistakes. Large AOIs tend to produce large volumes of consultation requests (with their correspondingly large volumes of accompanying documents). This can tax staff capacity and prevent staff from being able to identify and devote time to priority projects.
A variety of resources are used by the THPO in order to help delineate the STOF AOI. These sources can include: state site files, reports of archaeological investigations, historic period maps, journals, letters, and military records. Especially valuable guidance is provided by Tribal members themselves based on firsthand knowledge or histories and traditions passed down to them.
The original AOI map developed by the THPO dates to around 2007 (Figure 14.1) and was based in large part on the Lamar Culture Area, centered on the Lamar Mounds and Village site located in central Georgia along the banks of the Ocmulgee River. The site was occupied from about a.d. 1350 to 1600, and the inhabitants of the area are thought to be ancestral to the later Creek Indians and would, therefore, be ancestral to the Seminoles. Added to this Lamar area was the rest of Florida, which represents the historic and modern areas of the Seminole peoples. To capture the largest area of potential interest, a fairly large buffer area, including Mississippi and portions of Louisiana, Alabama, Tennessee, North Carolina, and South Carolina, were also incorporated into the first iteration of the AOI. This first version encompassed an area of more than 300,000 square miles—representing roughly twice the size of the state of California (or approximately the size of the country of Namibia).
Unlike state SHPOs, the STOF AOI boundaries are not permanently fixed and unchanging. As additional research is conducted and as Tribal interests change, the map boundaries can also change. Over the past two years there has been a development in how the CRS views the STOF AOI. This development results from an attempt to reconcile the Tribe’s interest with (p.264)
recognition of the practical real-world limits placed on staffing levels and available resources with the CRS. To fill the role of effective off-reservation Tribal advocate by balancing Tribal interests with limited resources, the CRS is now making a distinction between an AOI and an AOR (Figure 14.2). The AOI will continue to reflect all those areas in which the STOF has some level of interest. Smaller in size, the AOR will represent those areas the Tribe is especially concerned with and for which the CRS assumes the responsibility of active, comprehensive consultation. Currently, the CRS, in conjunction with the THPO Archaeometry and Collections Sections, the Tribal Ah-Tah-Thi-Ki Museum, and the Tribal community, is engaged in the development of an off-reservation Geographical Information Systems (GIS) database. The purpose of the database is to identify and to document specific off-reservation sites and locations of importance to the Tribe. A similar database already exists for on-reservation use. As research into Tribal history continues and as Tribal government and Tribal advisors/ community members continue to guide the THPO, it is likely that changes will periodically be made to both the AOI and the AOR. It is easy to imagine that portions of the AOI may become of sufficient concern or interest to the Tribe that they become incorporated (p.265)
into the AOR. Federal agencies may view the reality of changing STOF AOR boundaries with some confusion and perhaps consternation, so it will remain incumbent on the CRS to provide timely updates to the agencies as changes occur.
Consultation—A Tribal Perspective (Why, Who, What, When, Where, How)
Despite the fact that federal agencies have been engaged in the Section 106 consultation process with tribes for more than forty years, there is an amazing variety in the quality of these consultations. They can range from very good to poor (little to no real consultation). There is inconsistency not just between federal agencies but often within an agency—either between departments or between regional offices. Let me be clear that I am not classifying the quality of a consultation based solely on its outcome. The CRS recognizes the parties engaged in consultations do not serve the same constituency and that there will be differences of opinion and interpretation and recommendations. The CRS recognizes that its role in off-reservation consultation is essentially (p.266) advisory in capacity. Lead agencies are charged with making final determinations, and their determinations may not be desirable outcomes from the Tribal perspective. The Tribe does, however, expect to be treated fairly, respectfully, and in a manner consistent with the law. So let’s spend the remainder of this chapter examining what the STOF THPO believes consultation is and what we would like to see by way of meaningful consultation. I will do this by posing and then answering the questions why, who, what, when, where, and how.
Why consult at all? The simplest answer is because the law requires it. On the federal level, Section 106 of the NHPA and NAGPRA both require consultation with tribes, Alaskan villages, and Native Hawaiian Organizations under certain conditions. Moving beyond the issue of legally mandated compliance, however, there is, or should be, a moral component based on a respect for the cultural and religious beliefs of Native peoples. This moral dimension is clearly reflected in an early definition of the “federal trust responsibility”: “The United States Trust responsibility toward the American Indians is the unique legal and moral duty of the United States to assist Indians in the protection of their property and rights” (TallBear 2014).
Who consults? This appears to be pretty straightforward. Governmental agencies and tribes consult. While by volume most of our consultation occurs at the federal level, we do consult with states, primarily with the state of Florida, on a routine basis. Our consultations with Florida most often relate to Florida statute 872.05, which concerns unmarked human burials. This falls outside of Section 106 and isn’t a consultation in the NHPA sense, but the state does keep us informed of 872.05 issues and does solicit the Tribe’s opinion. We also rub elbows with the state when providing comments on federal undertakings and have developed a respectful enough working relationship that the CRS is not afraid to pick up the phone and exchange ideas or solicit advice from the SHPO.
Since tribes are sovereign nations, consultations under Section 106 should occur on a government-to-government basis. Who the appropriate consulting parties are can be problematic in at least two ways. First, federal agencies may want to delegate some of their consultation responsibilities to state agencies, local governments, or even nongovernmental organizations pursuant to Section 800.2 (c) (4). Some agencies seem to forget delegation requires the concurrence of the Tribe and that the delegating agency still remains legally responsible for all findings and determinations resulting from the consultation. A second factor complicating the “who” of consultation occurs when a nondesignated party (environmental or cultural resource consultants, architectural and engineering firms, real estate developers and land owners, and so (p.267) forth) contact the THPO directly in order to enter into discussions regarding particular projects. Sometimes this is done with an expectation of future federal involvement eventually initiating the 106 process, and sometimes it is done even after a federal agency has initiated the 106 process. We often find the nondesignated party does not inform the lead federal agency of its Tribal contact.
While the Tribe always reserves the right to talk with whom it chooses, generally the 106 process works best when the consultation remains between the federal agency and the THPO or SHPO. There are, however, at least two exceptions to this rule. The CRS supports the THPO not just by serving as the off-reservation contact for compliance issues but also by assisting the THPO in providing information to the Tribal government and community on a wide range of topics having the potential to affect their lives. We live in an age of almost instantaneous communication, when information is readily accessible to the STOF community. If this information concerns projects that might impact the STOF, it is increasingly expected that the THPO will be aware of these projects and assess possible impacts to the Tribe, whether or not Section 106 has been or will ever be initiated.
Case in point: the proposed River of Grass Greenway (AECOM 2014), which would connect the east coast and west coast of South Florida via a biking/hiking trail, had been well publicized (Miami–Dade County 2013) before the CRS was ever officially asked to consult on the project (or a portion of the project) by the Florida Department of Transportation (Federal Highways Administration 2013). It is no longer acceptable for us to say we do not know anything about, for instance, oil and gas exploration in South Florida but that if it ever becomes a 106 issue we will learn about it. The THPO is expected to anticipate some of these pre-106 or non-106 concerns, and, with its off-reservation focus, the CRS will support that effort. One way that effort can be supported is by monitoring local, state, and federal news outlets; another is by attending public meetings (non-Tribal, federal, state, or county agency presentations, and so forth) in order to collect general information about specific projects.
A second expectation of the government-to-government consultation preference occurs when parties wish to discuss proposed off-reservation projects with the Tribe for the purpose of providing the Tribe with a background briefing and/ or seeking the Tribe’s assistance in locating or avoiding Tribally sensitive areas. The CRS has engaged in these types of presentations and will consider requests for these types of briefings. Whenever these briefings occur, it is always with the clear understanding that the meetings are informal in (p.268) nature and do not constitute a formal consultation. At the appropriate time, the CRS will consult with the appropriate federal lead agency and will provide that agency formal comments as necessary. Despite these warnings, it is not uncommon for nonagency meeting participants to believe they are participating in a consultation and tell a federal agency they have already conducted a Tribal consultation.
What is consultation? A synthesis derived from statements issued and adopted by various federal government agencies results in the following definition of the key term “consultation”: consultation generally consists of meaningful and timely communication between agency officials and elected or duly appointed tribal government officials or their authorized representatives in developing agency actions that affect tribes. Consultation means open sharing of information, the full expression of tribal and agency views, a commitment to consider tribal views in decision making, and respect for tribal self-government and sovereignty.
The American Heritage Dictionary (2014) defines “consultation” as “a conference at which advice is given or views are exchanged.” For the Tribe, the notion of views being exchanged is critically important. Consultation should be an opportunity for a dialogue between parties and not a soliloquy directed at the Tribe. The Merriam-Webster’s Dictionary (2014) offers the following definition of “consultation”: “a discussion about something that is being decided.” It doesn’t say “that has been decided.” If the “exchange of views” is to be meaningful and constructive, they have to be listened to with open minds. The THPO is not happy when agencies coming into a consultation, especially the early stages of a consultation, have already reached a conclusion or made a determination, and present the appearance that it doesn’t matter what the Tribe says since they won’t be changing their minds. At worst this represents a violation of the agency responsibility under the law, and at the very least it won’t win the agency any friends in the THPO.
An example of how not to respectfully exchange views occurred in a fairly recent consultation meeting between the STOF THPO and a large federal agency concerning an especially troublesome and problematic issue for the Tribe (burial resources). A federal agency senior archaeologist told the STOF Chairman that the Chairman didn’t have to worry about possible impacts to precontact period mounds present within the area of potential effect (mounds known to contain burial resources) because these resources were not affiliated with the Seminoles. This official clearly failed to recognize the importance of possible ancestral affiliations to the Tribe even if, from the non-Tribal (p.269) perspective, the ancestors didn’t call themselves “Seminoles.” While Western science might label mounds and sites “prehistoric” and not see their connection to modern tribes, the label is arbitrary and disrespects a tribe that views those “prehistoric” peoples as ancestors. It is certainly inappropriate for an agency official to tell a Tribal leader or any Tribal member what he or she should or shouldn’t be concerned with.
Moving on to the “when” question: when should consultation begin? Tribes might not agree on everything, but if there is one opinion that seems to be universally held it is that consultation should begin “as soon as possible.” We recognize that government agencies operate under various constraints. For example, a private developer engaged in a construction project of some kind will eventually require a wetlands permit from the U.S. Army Corps of Engineers. A great deal of planning, design work, even cultural resources investigations may occur before a permit application is even submitted to the Corps. The Corps cannot begin 106 consultation with the Tribe until the application is submitted. Another example might be an electric utility considering several alternate transmission line corridors. Until the federal nexus is triggered (that is, it becomes a Section 106 issue), the tribe is out of the picture. These are cases where, as previously stated, the CRS may seek project information outside of the 106 consultation (informal briefings, public meetings, and so forth). So again—begin the consultation as soon as possible, and if there is some way to notify us about an undertaking coming along later, by all means let us know.
The next consultation question to be asked is where should consultation occur? There are several options, and no one option is going to be the right choice all of the time. Our experience has been that it is easier to establish productive working relationships through face-to-face meetings. Even though budget limitations often preclude this, for consultations that are likely to be protracted or problematic, every attempt should made to arrange at least an initial face-to-face meeting. If an in-person consultation is being scheduled, then the CRS highly recommends the agency make arrangements for that meeting to take place at the THPO. We believe this demonstrates a level of respect for the sovereignty of the Tribe on the part of the agency. It also allows the THPO an opportunity to familiarize the agency representatives with the THPO facilities and staff. We also recommend that agencies that have routine dealings with the Tribe try to make at least annual or semiannual visits, even if the visit is not linked to a particular project but is more informal. Let me add one other reason for in-person meetings—to paraphrase something I once heard said—it’s harder to say you’re crazy to someone sitting in the same (p.270) room with you. A certain level of forced civility is not necessarily a bad thing; perhaps it makes us look for more reasoned, constructive ways of presenting our views. If subsequent consultations need to take place via teleconferencing, then the groundwork has already been laid by in-person meetings and relationships have already been established.
One last suggestion on the consultation process concerns the “how.” How should consultation be initiated? Consultation should begin with a formal letter addressed to the Tribal Historic Preservation Officer, Paul Backhouse, and courtesy-copied to the Chairman of the Tribe. Since the THPO is authorized to engage in Section 106 consultation on behalf of the STOF, the THPO will remain the point of contact for the majority of consultation issues. Consultation issues can be elevated by the THPO to the Chairman and leadership as needed. Routine Section 106 consultations and 872.05 matters are then directed by the THPO to the Compliance Review Section.
Once an initial letter is received, a decision can be made concerning the nature of the consultation and what the appropriate method of future contact or interaction should be. Fortunately, the majority of the consultations we do can be handled through e-mails and telephone calls. Many federal agencies engaged in consultation with multiple tribes—the Federal Emergency Management Agency (FEMA), for example—rely heavily on webinars and teleconferences. Agencies using such media must be sensitive to the fact that for reasons deriving from sovereignty or privacy issues, many tribes are not comfortable with discussing tribal concerns in group settings and will only consult one-on-one. It is the responsibility of the federal agency to accommodate these concerns. Here I must emphasize that “notification” is not equivalent to “consultation.” Simply notifying a tribe of a proposed undertaking or decision regarding a project without affording the tribe an opportunity to participate in the decision-making process violates the letter and the spirit of the law. While the CRS often participates in phone conversations with federal or state agencies, most of the time these conversations are intended to be informal discussions and are not meant to be construed as formal comments on any particular project. THPO CRS formal comments come in the form of a written document, usually on Tribal letterhead and attached to e-mails.
To summarize the STOF THPO–CRS view of consultation, and borrowing from an Environmental Protection Agency (EPA) document (Environmental Protection Agency 2009), consultation means:
• openly sharing information;
• fully expressing Tribal and agency views;
• respect for Tribal self-government and sovereignty; and
• consultation is different from input and interaction or collaboration and outreach; consultation is government to government.
Any number of topics related to the challenges that the CRS faces and to their perspective on Tribal consultation could have been presented here. I chose to briefly examine issues relating to the increasing demands on staff time created by increasing numbers of consultation requests and how some of these demands can be managed by narrowing our AOR. This was followed by a discussion of the why, who, what, when, where, and how of the consultation process. One final word of caution: each tribe’s perspective is unique, and the experiences and the expectations of the STOF THPO–CRS are just that, unique, and not transferable to any other group. The challenge for any agency engaged in tribal consultation is to recognize that uniqueness and to adapt to it.
AECOM. 2014. “River of Grass Greenway Feasibility Study and Master Plan.” Prepared for the National Park Service, RTCA Program.
Environmental Protection Agency. 2009. “The Office of Air Quality and Standards, Consulting with Indian Tribal Governments, April 10, 2009.” Environmental Protection Agency. http://www.epa.gov/oar/tribal/pdfs/OAQPSConsultation-Policy%20april%202009.pdf.
Federal Highways Administration. 2013. “River of Grass Greenway PD&E.” U.S. Department of Transportation, Federal Highways Administration. May 13.
Miami–Dade County. 2013. River of Grass Greenway Community Workshops and Interactive Project Website Launch. Miami–Dade County, Parks, Recreation and Open Spaces, January 25.
TallBear, Kimberly M. 2014. “Understanding the Federal/ Tribal Relationship and Barriers to Including Tribes in Environmental Decision Making.” http://www.iiirm.org/publications/Articles%20Reports%20Papers/Environmental%20Pro-tection/unders~1.pdf.