# Presentation: 692172

## Native American Consultation and Miscellaneous Environmental Issues

- FAA Contacts:
- TEXAS:  Paul Blackford 817-222-5607
- ARKANSAS/OKLAHOMA:  Tim Tandy,
-                       817-222-5635
- LOUISIANA/NEW MEXICO: Joy Porter
-                       817-222-5644

## Whose Job Is It Anyway?

- You’ll be glad to know it’s the Federal agency’s responsibility to conduct Native American Consultation – but – that doesn’t mean you, the Sponsor, have no roll in the process.

- Tribal Strategies, Inc

**Notes:**
Even though the FAA has the lead responsibility for Native American consultation, sponsor needs to be involved throughout the process because eventually, pending the outcome of the consultation, grant assurances could incorporate any requirements and/or mitigation that evolves from the consultation effort.  Not to mention the possibility that the consultation process could add some time to the environmental process.  If cultural properties were to be impacted by the project, the mitigation could range from fencing the property for avoidance until after construction or a recovery plan might be required.  This is also a good reason for engineering to wait until the consultation process is completed.  At one airport in New Mexico, a few years ago. Design engineering was done in advance of completion of the process, and the approved alignment was changed from the one designed earlier in the process.

## What Regulations Apply

- •	Section 106 of the National Historic Preservation Act
- •	FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures
- •DOT Order 5301.1, DOT Programs, Policies, and Procedures Affecting American Indians, Alaska Natives, and Tribes

- Tribal Strategies, Inc

**Notes:**
The FAA works with the Section 106 requirements the most, but many of the other regulations come into play eventually before we are done.  What laws apply depends on your project and its potential to cause impacts to Native American properties.  It also depends on whether the involved tribes/pueblos have issues or concerns, but those usually become apparent during consultation.

## Continuation – What Regulations Apply?

- •	Executive Order 13084, Consultation and Coordination with Indian Tribal Governments
- •	Executive Memorandum, Government-to-Government Relations with Native American Tribal Governments – April 29, 1994
- •	Executive Order 13175, Consultation and Coordination with Indian Tribal Governments

- Tribal Strategies, Inc

## Why Do Agencies Consult?

- •	There are 562 Federally recognized Indian tribes
- •	Because it’s the law
- Because the relationship of the Native Americans to the United States is established in American History as a trust responsibility, which is not the same as the relationship with the public or other agencies.

- Tribal Strategies, Inc

**Notes:**
Earliest days of the republic, the Federal gov’t recognized tribes as sovereign nations and established a legal process through the Constitution, treaties, statutes and exec orders and court decisions

While Federal Government agencies are legally responsible to consider the interests of members of the public in general, Federal agencies' official interactions with Native Americans, including consultation, are distinguished by unique legal relationships. Sovereign status of Indian tribes and special provisions of law that set Native Americans apart from all other U.S. populations and define a special level of Federal agency responsibilities

## Continuation – Why Do Agencies Consult?

- •	Because a Tribe/Pueblo requests it
- •	Because your project may impact some important aspect of the Tribe’s way of life (cultural properties, ceremonies, traditions important to their continued survival (Section 106)

- Tribal Strategies, Inc

**Notes:**
Tribes/Pueblos don’t have to wait to be asked to consult, they can request.  It is a very formal process that involves not only consultation on cultural and traditional issues, but they can request to enter into a government-to-government consultation which provides them the opportunity to deal with the Federal agency on a one-to-one basis, rather than through consultation including SHPOs, ACHP, etc.  It is not uncommon for Native Americans to reserve consultation to only Federal agencies, preferring not to consult with local authorities or private individuals.  It is to your benefit, as the airport sponsor, to establish a working relationship with them, hopefully building an avenue for trust and communication.

## Unique Legal Relationship

- Sovereign status of Indian tribes and special provisions of law set them apart from members of the public
- Interactions with tribes are different
- Federal agencies are generally required to show good faith effort to notify and consult tribes regarding their proposed actions

- Tribal Strategies, Inc

**Notes:**

Specific statutory obligations –NHPA, NAGPRA, AIRFA, NEPA, to name a few, require consultation on the part of Federal agencies.  It is important that we respect their right to privacy and their diligent efforts to protect their lands, culture, and way of life.  They have fought for centuries for those rights and protections, and it is the responsibility of each and every Federal agency to ensure that their efforts are not in vain.

Again, this is a Federal responsibility, but you as the airport sponsor need to be aware of potential impacts to the timeline of your project.

## Who to consult with

- •	It depends ----
- •	Various Federal statutes require consultation with—
- 	•	Federally recognized tribal government
- 	•	Traditional and cultural religious 	leaders and practitioners
- 	•	Non-Federally Recognized tribes

- Tribal Strategies, Inc

**Notes:**
After the involved tribes/pueblos have been identified, consultation always includes the State Historic Preservation Officer.  That offices plays an active part throughout the entire consultation process.  There may also be an occasion when the Advisory Council on Historic Preservation may take part in the consultation as well.

## Where Are The Tribes/Pueblos

- Tribal Strategies, Inc

**Notes:**
I left this slide in even though it is not totally accurate.  I know there are a number of Native American tribes in Texas and Louisiana not depicted on this map.  In addition, there are many to the north and east of us not shown here.  I believe this was specifically addressing the western portion of the states.

## Identifying Tribes

**YOUR SHPO IS A GOOD PLACE TO START**
- BIA Tribal Leaders Directory
- _[http://indian.senate.gov/tribal_leaders.pdf](http://indian.senate.gov/tribal_leaders.pdf)_
- Judicially Established Land Claims Map
- _http://www.wes.army.mil/el/ccspt/natamap/usa_pg.html_
- National Congress of American Indians
- _[http://www.ncai.org/main/pages/tribal_directory/](http://www.ncai.org/main/pages/tribal_directory/)_
- 	index.asp

- Tribal Strategies, Inc

## When to consult?

- Early, Early, Early
- Pre-decisional consultation helps identify issues and opportunities at the beginning
- Reduces potential delays and increased costs
- Can be done within the planning or environmental review process

- Tribal Strategies, Inc

**Notes:**
This is where you, the sponsor, can come in to the process.  You can make us and your consultant aware of tribes/pueblos in the area prior to us contacting the SHPO.   Being aware of the need for Native American consultation and getting it started early is extremely important, especially to time-critical projects.  Consultation can and often does take a considerable amount of time to complete, so the earlier the better.  

This consultation can be required during the Categorical Exclusion process as well as during an EA.

We are working in the ADOs to establish a procedure where the Environmental Specialist in each ADO will review your CIPs advising the FAA project manager of the environmental needs of each planned project (CE, EA, or EIS).  It used to be that the FAA project manager would oversee the Categorical exclusion determination procedure when applicable, and often oversee the EA process as well.  That has now changed and only the Environmental Specialist in each ADO will be responsible for any and all environmental needs and determinations.  Hopefully, this will enable us to get a head start on the environments needs of your projects  This leads back to reducing delays and increased costs.

## Consultation Process

- Should take into account the views of the tribe
- Take into account the level of impact, the complexity of the issues, and level of concern
- Should continue throughout the decision-making process

- Tribal Strategies, Inc

**Notes:**
We always set up a face-to-face meeting to initiate the consultation process.  This is an extremely important part of the process to the tribal governments.  It is important that we try to establish a high level of trust and demonstrate sensitivity to their concerns.  

Even though we may initiate the consultation process, there is no requirement that the tribes/pueblos disclose any locations of their cultural sites or their activities.  They are often reluctant to disclose any information about their sites or activities, and that is acceptable.  The requirement for the Federal agency is that we must be able to show we have given the tribes the opportunity to consult and share their concerns---we must make a good faith effort to include them in the process and assess any impacts if they should disclose the necessary information.

We have found that the consultation process often can be a lengthy one primarily due to the difference in the FAA’s concept of time and the tribe’s concept of time.  Asking for their comments within a 30-day period is often wasted effort on our part, and  additional time is always required to obtain a response, realizing that we may never get one at the end of the process.

## Sensitive Data

- Freedom of Information Act exemptions
- National Historic Preservation Act--Section 304-- permits an agency to not disclose information if it may result in harm to the property, a significant invasion of privacy or impede traditional religious practice at the site
- Archaeological Resources Protection Act—Section 9 allows agencies to protect resources by restricting information on their nature and location

- Tribal Strategies, Inc

## Key elements in coordination process

- Timely notice of proposed federal action that will require consultation
- Exchange of information on potential impacts to tribal rights or trust resources
- Fully consider tribal input and recommendations
- Document how input and recommendations are a part of the decision-making process

- Tribal Strategies, Inc

**Notes:**
This is again where you the sponsor can play an important role.  Getting the projects in early, making us aware of the potential need for consultation by familiarizing your self with the tribes in your area, helping us get this started early so it, hopefully, won’t delay a time-critical project.