Form 1221-2

(June 1969)

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

MANUAL TRANSMITTAL SHEET

Release

1-1781

Date

12/15/16

Subject: BLM Handbook 1780-1 Improving and Sustaining BLM-Tribal Relations (P)

1. Explanation of Material Transmitted: This release transmits the new Handbook (H) 1780-1, 

Improving and Sustaining BLM-Tribal Relations, which replaces H-8120-1, Guidelines for 

Conducting Tribal Consultation. H-1780-1 implements new administration and 

Departmental policies to provide comprehensive guidance concerning tribal relations for all 

BLM managers and programs.

2. Reports Required: None.

3. Material Superseded: H-8120-1. Release number 8-75

4. Filing Instructions: Remove and replace in accordance with the below instructions.

REMOVE All of H-8120-1 INSERT All of H-1780-1

Release 8-75

Neil Kornze

Director

Bureau of Land Management
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Table of Contents

CHAPTER I. INTRODUCTION ..............................................................................................I-1

A. PURPOSE AND ORGANIZATION OF THIS HANDBOOK...........................................................I-1

B. THIS HANDBOOK’S PLACE IN THE BLM MANUAL SYSTEM ...............................................I-2

CHAPTER II. BUILDING AND MAINTAINING TRIBAL RELATIONSHIPS .............II-1

A. INTRODUCTION .................................................................................................................II-1

B. CONFIDENTIALITY ............................................................................................................II-1

C. BUILDING A BROAD-BASED RELATIONSHIP......................................................................II-4

D. FINANCIAL SUPPORT FOR TRIBAL PARTICIPATION IN BLM DECISIONMAKING ...............II-14

E. ACCOUNTABILITY ...........................................................................................................II-15

CHAPTER III. TRIBAL CONSULTATION GENERAL CONSIDERATIONS .............III-1

A. DISTINGUISHING BETWEEN NOTIFICATION, COORDINATION, AND 

CONSULTATION............................................................................................................... III-1

B. BLM REPRESENTATIVES IN CONSULTATION................................................................... III-3

C. IDENTIFYING TRIBES AND OTHER INDIAN PARTIES FOR CONSULTATION......................... III-4

D. WHEN IN THE DECISIONMAKING PROCESS TO START CONSULTATION............................ III-7

E. PREPARING AND INITIATING TRIBAL CONSULTATION..................................................... III-8

F. CORRESPONDENCE CONTENT.......................................................................................... III-9

G. GENERAL FEATURES OF CONSULTATION ...................................................................... III-11

H. USE OF INTERNET TO FACILITATE CONSULTATION ....................................................... III-13

I. LACK OF TRIBAL RESPONSE.......................................................................................... III-14

J. APPROACHES TO CONTENTIOUS MEETINGS .................................................................. III-15

K. HOW MUCH CONSULTATION TO DO—MEETING THE GOOD FAITH STANDARD............ III-15

L. DOCUMENTATION OF NOTIFICATION, COORDINATION, AND CONSULTATION ............... III-17

M. CONCLUSION OF CONSULTATION.................................................................................. III-18

CHAPTER IV. GUIDANCE FOR TRIBAL CONSULTATION IN PLANNING 

AND DECISION SUPPORT ..................................................................................................IV-1

A. GENERAL AUTHORITIES..................................................................................................IV-1

B. ETHNOGRAPHIC STUDIES ..............................................................................................IV-17

C. COORDINATING TRIBAL CONSULTATION OBLIGATIONS UNDER DIFFERENT 

LAWS ............................................................................................................................IV-21

D. KEY DIFFERENCES BETWEEN VARIOUS AUTHORITIES ..................................................IV-22

CHAPTER V. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE NATIONAL CONSERVATION LANDS PROGRAM ........................................ V-1

A. OVERVIEW ....................................................................................................................... V-1

B. COMPONENTS OF THE NATIONAL CONSERVATION LANDS SYSTEM ................................. V-3

CHAPTER VI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE FIRE MANAGEMENT PROGRAM ....................................................................VI-1

A. INTRODUCTION ...............................................................................................................VI-1
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B. LEGAL AUTHORITIES FOR TRIBAL CONSULTATION WITHIN THE FIRE 

MANAGEMENT PROGRAM ...............................................................................................VI-1

C. IMPORTANCE OF LUP/RMP FOR FIRE PLANNING AND COORDINATION WITH 

INDIAN TRIBES................................................................................................................VI-2

D. AREAS OF RESPONSIBILITY .............................................................................................VI-3

E. PROGRAM OPERATION STANDARDS................................................................................VI-3

F. COHESIVE STRATEGY......................................................................................................VI-3

G. PARTNERSHIPS WITH TRIBES...........................................................................................VI-3

H. USE OF 638 COMPACTS OR SELF-GOVERNANCE CONTRACTS IN THE FIRE 

PROGRAM .......................................................................................................................VI-3

CHAPTER VII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE FOREST AND WOODLANDS PROGRAM...................................................... VII-1

A. OVERVIEW .....................................................................................................................VII-1

B. LEGAL AUTHORITIES .....................................................................................................VII-2

C. TREATIES AND FOREST PRODUCTS.................................................................................VII-3

D. STEWARDSHIP CONTRACTING........................................................................................VII-4

CHAPTER VIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE RANGELAND MANAGEMENT PROGRAM .................................................VIII-1

A. INTRODUCTION ............................................................................................................ VIII-1

B. CONSULTING DURING MONITORING AND EVALUATION PROCESSES............................ VIII-1

C. CONSULTING DURING GRAZING PERMIT RENEWAL AND OTHER VEGETATION 

MANAGEMENT ACTIVITIES .......................................................................................... VIII-1

D. HOW TYPES OF PROJECTS REQUIRING TRIBAL CONSULTATION ARE DEFINED ............ VIII-2

CHAPTER IX. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE FISH AND WILDLIFE PROGRAM.....................................................................IX-1

A. INTRODUCTION ...............................................................................................................IX-1

B. COLLABORATIVE CONSERVATION APPROACH ................................................................IX-1

C. SUBSISTENCE MANAGEMENT..........................................................................................IX-2

D. ENDANGERED SPECIES AND MANAGEMENT OF CRITICAL HABITAT................................IX-2

E. DISRUPTION AND REMOVAL OF ANIMAL PARTS .............................................................IX-3

F. CONFIDENTIAL BIOLOGICAL INFORMATION....................................................................IX-3

G. LAND ACCESS AND CROSS-BOUNDARY FIELD ACTIVITIES .............................................IX-4

H. LAW ENFORCEMENT .......................................................................................................IX-5

CHAPTER X. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE CULTURAL HERITAGE PROGRAM ................................................................. X-1

A. INTRODUCTION ................................................................................................................ X-1

B. CONSULTING UNDER HERITAGE RESOURCES AUTHORITIES ............................................ X-1

C. SPECIAL CONSIDERATIONS/ISSUES THAT APPLY TO THE CULTURAL HERITAGE 

PROGRAM ...................................................................................................................... X-17
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CHAPTER XI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE RENEWABLE ENERGY PROGRAM.................................................................XI-1

A. INTRODUCTION ...............................................................................................................XI-1

B. NEPA COMPLIANCE FOR UTILITY-SCALE RENEWABLE ENERGY RIGHT-OFWAY AUTHORIZATIONS ..................................................................................................XI-1

C. TRIBAL GOVERNMENT-TO-GOVERNMENT CONSULTATION.............................................XI-2

D. SOLAR AND WIND ENERGY APPLICATIONS—DUE DILIGENCE .......................................XI-3

E. EARLY COORDINATION MEETINGS AND DEVELOPMENT PRIORITIZATION ......................XI-3

F. PROJECT-SPECIFIC CONSULTATION.................................................................................XI-5

G. COMPREHENSIVE SOLAR AND WIND ENERGY PROGRAMS ..............................................XI-6

H. SOLAR AND WIND ENERGY DEVELOPMENT POLICY .......................................................XI-8

CHAPTER XII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE FLUID MINERAL PROGRAM (RESERVED)................................................. XII-1

CHAPTER XIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE MINERALS PROGRAM.....................................................................................XIII-1

A. INTRODUCTION ............................................................................................................ XIII-1

B. ONSHORE ENERGY AND MINERAL LEASE MANAGEMENT INTERAGENCY 

STANDARD OPERATING PROCEDURES.......................................................................... XIII-1

C. TRIBAL CONSULTATION FOR FEDERAL MINERALS MANAGEMENT GENERALLY.......... XIII-3

D. TRIBAL CONSULTATION FOR FEDERAL MINERALS MANAGEMENT IN SPLIT 

ESTATE SITUATIONS .................................................................................................... XIII-4

E. BLM RESPONSIBILITIES FOR INDIAN TRUST MINERALS MANAGEMENT...................... XIII-5

F. INDIAN SELF-DETERMINATION ACT .......................................................................... XIII-10

CHAPTER XIV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE CADASTRAL SURVEY PROGRAM................................................................XIV-1

A. BACKGROUND..............................................................................................................XIV-1

B. CADASTRAL PROGRAM ROLE IN MANAGING TRUST ASSETS .......................................XIV-1

C. BOUNDARY EVIDENCE.................................................................................................XIV-2

D. SURVEY PROCESS ........................................................................................................XIV-3

CHAPTER XV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE 

TO THE REALTY PROGRAM (RESERVED)................................................................. XV-1

A. POLICY REGARDING CONTRACTING FOR PRODUCTS......................................................... 2-1

B. POLICY COVERING COMPENSATION FOR TRIBAL INPUT INTO BLM

DECISIONMAKING PROCESSES .......................................................................................... 2-3

GLOSSARY OF TERMS.........................................................................................................G-1

FIGURES

Figure III-1 With whom to consult depends on the particular legal authority. ..................... III-8

Figure IV-1 Provisions of Title II of the Federal Land Policy and Management Act. .........IIV-2
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Figure IV-2 Tribal consultation for purposes of Title II of the Federal Land Policy and 

Management Act...............................................................................................IIV-3

Figure IV-3 Provisions of Section 102 of the National Environmental Policy Act..............IIV-7

Figure IV-4 Tribal consultation for purposes of Section 102 of the National 

Environmental Policy Act.................................................................................IIV-8

Figure IV-5 Provisions of the American Indian Religious Freedom Act. ..........................IIV-13

Figure IV-6 Tribal consultation for purposes of Section 2 of the American Indian 

Religious Freedom Act. ..................................................................................IIV-13

Figure IV-7 Provisions of Executive Order No. 13007 ......................................................IIV-15

Figure IV-8 Tribal consultation for purposes of Executive Order No. 13007, “Indian 

Sacred Sites.” ..................................................................................................IIV-16

Figure X-1 Tribal consultation for purposes of Section 106 of the National Historic 

Preservation Act.................................................................................................. X-1

Figure X-2 Provisions of Section 101(d)(6) of the National Historic Preservation Act. ...... X-2

Figure X-3 Provisions of Section 4 of the Archaeological Resources Protection Act. ......... X-7

Figure X-4 Tribal consultation for purposes of Section 4(c) of the Archaeological 

Resources Protection Act.................................................................................... X-9

Figure X-5 Provisions of Sections 5, 6, and 7 of the Native American Graves 

Protection and Repatriation Act and Corresponding Regulations. ................... X-12

Figure X-6 Provisions of Section 3(c) and (d) of the Native American Graves 

Protection and Repatriation Act and Corresponding Regulations. ................... X-13

Figure X-7 Quick Reference for New Discoveries and Collections Requirements 

under the Native American Graves Protection and Repatriation Act. .............. X-15

Figure X-8 Appropriate Consulting Parties Associated with Selected Native 

American Graves Protection and Repatriation Act Activities. ......................... X-16

Figure A3-1 Example of a spreadsheet/database to document tribal consultation................ A3-1

APPENDICES

APPENDIX 1 ACRONYMS AND ABBREVIATIONS ..................................................................... A1-1

APPENDIX 2 IMPLEMENTATION OF BLM POLICY REGARDING COMPENSATION TO 

NATIVE AMERICANS FOR PRODUCTS AND THEIR PARTICIPATION IN THE 

BLM’S DECISIONMAKING PROCESSES............................................................... A2-1

APPENDIX 3 SPREADSHEET/DATABASE TO DOCUMENT BLM-INDIAN TRIBAL 

CONSULTATION.................................................................................................. A3-1

APPENDIX 4 COORDINATION OF NEPA, NHPA 106, AND TRIBAL CONSULTATION............... A4-1

APPENDIX 5 EXAMPLE OF CONTENTS FOR TRIBAL CONSULTATION STRATEGY ..................... A5-1
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CHAPTER I. INTRODUCTION

A. Purpose and Organization of this Handbook

Manual Section 1780 (MS-1780) and Handbook 1780-1 (H-1780-1) are being released

simultaneously. H-1780-1, Improving and Sustaining BLM-Tribal Relations, replaces H-8120-1 

(Rel. 8-75, 12/03/04). MS-1780, Tribal Relations, replaces MS-8120 (Rel. 8-74, 12/03/04). 

MS-8120 and H-8120-1 were specific to implementation of historic preservation authorities only. 

Therefore, this new guidance is appropriately placed within the Bureau of Land Management 

(BLM) 1700 series, which addresses relations with other governments, including State, local, and 

international relations. Developed in response to the finalization of 512 Departmental Manual 

(DM) Chapters 4 and 5, H-1780-1 with MS-1780 provides direction for all BLM programs for 

improving and sustaining tribal relations, including government-to-government consultation. 

We attempted to be inclusive; however, this handbook does not contain sections for every 

program area or discipline who should be involved in tribal relations. Updates and additional 

chapters will be added when they are available.

H-1780-1 addresses a broad range of legal authorities and agency programs of interest to tribes 

and also highlights BLM responsibilities. It incorporates current guidance derived from recent 

case law, new Secretarial orders and policies, Executive orders, and decades of experience 

working with tribes on a government-to-government basis:

 Chapter I introduces the handbook material and its relationship to the manual.

 Chapter II provides steps the BLM should take to build a positive broad-based 

relationship with Indian tribes. Suggestions stress developing partnerships based on 

common interests, financial support, confidentiality, and accountability. 

 Chapter III provides practical guidance on the mechanics of government-to-government 

consultations applicable to all BLM programs, including: (1) how to conduct and 

document consultation efforts; (2) identification of tribal leaders or their representatives; 

(3) developing strategies to achieve success in BLM-tribal relations, communications, 

meetings and formal government-to-government consultations; and (4) recognizing tribal 

motivation driving consultation. 

 Chapter IV addresses consultation needed in land use planning and decision support. It 

summarizes BLM obligations under the Federal Land Policy and Management Act 

(FLPMA); National Environmental Policy Act (NEPA); Executive Order (E.O.) 13175, 

Consultation and Coordination with Indian Tribal Governments; the American Indian 

Religious Freedom Act (AIRFA); and Executive Order 13007, Indian Sacred Sites. The 

use of ethnographic studies for planning purposes, how to coordinate tribal consultation 

obligations under these legal authorities, as well as key differences among the legal 

mandates are highlighted. 

 Chapter V outlines requirements for tribal consultation and opportunities for tribal 

partnerships within National Conservation Lands. 
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 Beginning with Chapter VII, a series of program-specific chapters can be found. Each 

chapter highlights legal authorities driving consultation and tribal relations for that 

program, explains special considerations applicable to that program, and identifies 

potential partnerships or agreements with Indian tribes.

 Program-specific chapters: Fire Management Program (Chapter VI); Forest and 

Woodlands Program (Chapter VII); Rangeland (Chapter VIII); Fish and Wildlife 

Program (Chapter IX); Cultural Heritage Program (Chapter X); Renewable Energy 

Program (Chapter XI); Fluid Mineral Program (reserved at Chapter XII); Minerals 

Program (Chapter XIII); Cadastral Survey Program (Chapter XIV); and Realty Program 

(reserved at Chapter XV). Handbook guidance is not limited to those programs featured 

within individual chapters. Examples and clarifications are provided throughout the text 

regarding how the issue under discussion affects a variety of BLM program areas.

B. This Handbook’s Place in the BLM Manual System

MS-1780 and this handbook, H-1780-1, are housed within the BLM’s broad administrative 

manual series, since they focus on cooperative relations with other governments, including State 

and international relations. This guidance is intended for line managers exercising their 

executive duties and other agency decision makers; however, certain chapters and appendices 

provide technical direction as well. Agency staff and public land users will also find this 

handbook beneficial to establish familiarity with agency policies and expectations of the decision 

makers.
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CHAPTER II. BUILDING AND MAINTAINING TRIBAL RELATIONSHIPS

A. Introduction

Successful relations with tribes are built upon the establishment of personal and professional 

relationships characterized by trust, respect, and mutual interest. Field offices are encouraged to 

utilize the tools and strategies presented in this chapter to establish deeper and more meaningful 

agency-tribal relationships. These relationships must be founded upon policies that encourage 

stable interactions and that seek out opportunities to interact positively with tribes across many 

program areas.

Examples of innovative, cooperative programs between BLM offices and individual tribes are 

presented in the following sections. Many tribal requests for gaining access to sites, gathering 

materials for traditional uses, and protecting sacred places can be addressed within the normal 

scope of multiple use management. But the BLM’s success in addressing tribal issues depends a 

great deal on how strong its working relationships are with tribes, how trustful those 

relationships are, and how skillfully the agency has developed a respectful relationship over 

time.

B. Confidentiality

1. Background Information. Native Americans may be reluctant to share sensitive information 

regarding resource locations and community-held values with agency officials for several 

reasons. First, historical relations among native people and others have led to a distrust of the 

Federal Government and the non-Indian public, especially related to the respect for Native 

American religion. Second, secrecy is often a central tenet of Native American religious beliefs. 

Third, many Native Americans fear that sharing information with outsiders could result in the 

abuse of sacred sites and the disruption of religious ceremonies.

Managers and staff carrying out Native American consultation should clearly represent 

the sort of information they seek, the purposes to which the information will—and will 

not—be applied, and the limits of the BLM’s ability to protect the information from 

public disclosure. The extent of that ability must not be misrepresented. All sensitive 

data should be carefully maintained and securely stored. Offices responsible for 

gathering sensitive information and conducting consultation should have adequate 

physical and procedural means to ensure secure file maintenance and management. 

Each office may wish to develop maps or geospatial layers in accordance with BLM 

Federal Geographic Data Committee standards showing areas where tribes have 

identified issues or concerns. Maps can depict lands historically occupied or utilized 

and can also locate areas identified as having ongoing traditional religious significance 

and use. However, when information of this extremely sensitive nature is included, 

maps must be treated as confidential working files with limited internal access and kept 

from public view. The metadata should indicate its confidentiality.
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2. Federal Advisory Committee Act (FACA). The FACA requirements for open meetings 

and public access do not apply to tribal consultation involving only Federal and Tribal 

representatives because Congress has exempted intergovernmental consultation from 

FACA requirements. Please consult the Solicitor's Office on the scope of the exemption 

when arranging a tribal consultation.

 3. Freedom of Information Act (FOIA). Native American are sometimes reticence to 

share information because agencies have been partially hindered from effectively 

protecting sensitive information. Once in an agency’s possession, the information may 

be subject to disclosure if it is requested under the 1966 Freedom of Information Act 

(FOIA; 5 U.S.C. 552) or distributed as part of publically available NEPA analysis.

The extent to which sensitive tribal information can be maintained as confidential 

depends on the degree to which it fits within one of FOIA’s nine exemptions. These 

exemptions may protect most information about sacred sites. Whether or not all such 

information can be protected under them should be discussed with the Solicitor’s Office. 

Several exemptions may apply

Exemption 3 protects from disclosure matters “specifically exempted from disclosure by 

statute” and exemption 6 exempts “personal and medical files and similar files the 

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 

Another possibility concerns the “trade secrets” exemption. It applies to trade secrets and 

commercial or financial information that is also privileged or confidential.

To the extent permitted by law, if a tribe submits information under a claim of protection, 

the BLM can assert an applicable privilege for, and seek to protect, that information from 

public disclosure. While these privileges are initially asserted by the BLM, a challenge to 

an assertion of privilege may be ultimately resolved by the Federal judiciary when a 

decision is challenged in court. In this circumstance, a privileged document may be 

subject to review or possible release by a court, notwithstanding the BLM’s good faith 

assertion of an applicable privilege. Thus, a tribe must assess and be comfortable with 

any and all submissions it makes to assist the BLM in its land-use planning process, 

understanding that there is some risk certain documents may, in the end, be publically 

disclosed.

4. Archaeological Resources Protection Act (ARPA). The regulations (43 CFR 7)

implementing the Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa–

470mm) requires protection from public release. However, it is important to note that 

ARPA’s non-disclosure obligation has important limitations. First, the statute mandates 

protection against publicly releasing information about “archaeological resources,” which 

include “material remains of past human life or activities which are of archaeological 

interest” and are at least 100 years of age. Second, even if the information involves an 

archaeological resource, if the State’s governor requests the information, the agency must 

provide it. State statutes governing disclosure or protection of such information would 

govern its protection from that point forward. Third, ARPA only applies to public 
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surface. Thus, information gathered from BLM consultation regarding private or State 

surface is not protected under this statute.

 5. National Historic Preservation Act (NHPA). The National Historic Preservation Act 

(54 U.S.C. 300101 et seq.) requires the non-disclosure of sensitive information following 

procedures that agencies must follow at 54 U.S.C. 307103. Although courts have not yet 

ruled that NHPA is a withholding statute under FOIA, it appears to be so. NHPA 

provides that the head of a Federal agency conducting NHPA consultation shall, after 

consulting with the Secretary of the Interior, “withhold from disclosure to the public 

information about the location, character, or ownership of a historic property” if the 

Secretary and the agency conclude that disclosure would do any of three things: (1) cause 

a significant invasion of privacy; (2) risk harm to the historic resource, or (3) impede the 

use of a traditional religious site by practitioners. The main limitation with using this 

protection is that in order to withhold sacred site information under the NHPA, the BLM 

must first determine that the information pertains to historic properties—that is,

properties included in or eligible for inclusion on the National Register of Historic Places 

(National Register or NRHP). The BLM then can only make a conditional promise to 

withhold information under the NHPA if there is a sufficient basis to conclude that the 

site or sites in question are likely to be considered historic properties.

The ACHP has released guidance on the use of 54 U.S.C. 307103 (old Section 304) to 

protect sensitive information about historic properties. The federal official determines 

what information to withhold, prepares redacted documents, develops documentation to 

support the decision, and initiates consultation with the Keeper of the National Register 

(NPS). If the official and the Keeper both agree that disclosure meets the criteria for 

withholding, then the official withholds the information from disclosure. NPS reviews 

the relevant information and after consulting with the official determines who may have 

access to the information. The Keeper consults with the ACHP in this process of 

determining withholding and access when the information at issue was developed in 

compliance with Section 106 or Section 110(a) of the NHPA. If the official and the 

Keeper disagree on whether disclosure of certain information meets the criteria for 

withholding, then the information will not be withheld under Section 304. The decision 

to withhold information requires agreement by the official and the Keeper. The ACHP's 

opinion on this matter is advisory only.

 6. Other Strategies. State-adopted versions of the 1979 Uniform Trade Secret Act and the 

1974 Privacy Act (5 U.S.C. 552a) also may provide limited degrees of protection. 

Oregon. Vale District. In April 2009, the Vale District entered into a Trade Secret 

Agreement with the Confederated Tribes of the Umatilla Indian Reservation. In this 

agreement, the tribes agree to conduct an inventory of culturally important plant species 

and to use this plant list to model potential habitat for these species using geographic 

information system (GIS) and statistical methods. The two parties concur that the model 
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generated would inextricably involve cultural resources and information uniquely known 

to the tribes, which is of economic value. Both the list and the model are, and will be, 

trade secrets of the tribes in so far as they consist of information that is secret, has 

economic value due to its secretive nature, and the tribes have made reasonable efforts to 

keep this and other cultural information and knowledge secret. Thus, the agreement 

concludes that this information may not be subject to disclosure under the trade secrets 

exemption in the Freedom of Information Act.

 Another option to consider for protecting sacred site and other sensitive tribal information 

from public disclosure is to refrain from housing such information within any formal 

federal government system of records. Such data might be housed at tribal offices with 

joint use agreements allowing BLM officials with a need to know access to the files at 

tribal offices. Field offices should consult the Solicitor’s Office regarding the application 

of these statutes and strategies to protect from public disclosure sensitive information 

regarding sacred sites or places of traditional religious or cultural importance versus the 

requirement to disclose such information if used by the BLM to make decisions.

C. Building a Broad-Based Relationship

1. Learn About Indian Tribes, Communities, and Leaders. Managers and their staffs 

should take the time to learn about the tribes with which they will be working: 

 What is their history? 

 What is their aboriginal land base?

 When were they federally recognized? 

 Were their reservation rights (if any) established by treaty or by Executive order?

 How are they organized? 

 Do they have off-reservation treaty or other reserved rights? 

 Are they related historically or culturally to other tribes in the area? 

 Are there specific cultural customs that may have bearing on interactions and 

meeting protocols?

It is a good idea to read the most widely accepted ethnographic histories of the tribe and 

information produced by the tribe about itself and membership, often available on their 

website. Consider subscribing to tribal media and accessing websites or other media to 

keep informed about what is important to the tribes with an interest in your area, who the 

tribal leaders are, and what issues are of concern to them. Be open to receiving 

information from officials about their tribe, its customs, and history. Also, be aware that 

some information may be considered sensitive and should not be widely disseminated. 

Meet or contact tribal representatives, such as tribal history or cultural program leaders, 
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to learn what sources of information about the tribe they recommend. This context will 

have a bearing on meetings and consultations with tribes and may affect how successful a 

BLM office is in its consultation efforts.

2. Establish and Maintain Personal Relationships. The most successful BLM-tribal 

working relationships are those built and maintained over a long period of time with the 

same individuals representing each party. A good example is the BLM Indian Lands

Surveyor (BILS) Program, whereby senior cadastral surveyors are stationed at BIA 

Regional Offices, consulting on a regular basis with tribal leaders and managers, 

individual Indians, and Alaska Natives regarding issues affecting BLM-tribal 

management of land boundaries relations.

The BLM managers are encouraged to visit tribal councils and appropriate tribal leaders 

on a recurring basis. Face-to-face meetings help develop relationships, irrespective of 

specific issues or proposed actions. Managers are encouraged to take advantage of these 

meetings to discuss how, when, and with whom follow-up consultation should occur. 

Attending economic enterprises, celebrations, dances, cultural festivals, sporting events,

or feasts provides positive intercultural experiences that can build more personal, trustful 

relationships.

The BLM managers should assign tribal coordination duties to a limited number of 

employees with the goal of encouraging those employees to develop long-term

professional relationships with tribes. These tribal liaisons or other staff play key roles in 

coordinating with tribal staff and representatives and often attend government-togovernment meetings. These staff support field managers who have been delegated the 

authority to make binding decisions (see Chapter III. B). Suggested employee 

performance appraisal plan elements are provided in Chapter II, section E.1.

When BLM managers and/or staff assigned consultation and coordination responsibilities 

retire, transfer, or have changes in job duties, tribal relationships can be adversely 

affected. Therefore, BLM managers should take appropriate actions to help minimize the 

turnover of personnel responsible for tribal coordination. Such actions might include 

assignment of accretion of duties, creation of appropriate career ladders, etc.

Potential disruptions due to staff turnover can be reduced or managed in a number of 

ways. New BLM managers and staff should take training on tribal consultation and 

relations, such as courses provided by the National Training Center (NTC). Several are

available online. Tribal liaisons should brief managers shortly after they come on board 

regarding the history of local tribal relations, existing agreements, prominent issues, and 

resources of concern to the tribe that the BLM knows about. Tribal liaisons should 

accompany managers in meetings. New managers need to visit tribes soon after arrival to 

become oriented regarding tribal governmental structures and tribal perspectives and to 

ensure that regularly scheduled government-to-government consultations will not be 

disrupted.
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Tribal governments hold elections for president or chairperson frequently, sometimes 

yearly. All BLM managers should quickly take the opportunity to meet with new tribal 

officials at the start of their tenure to discuss ongoing land use planning, land use actions, 

and proactive programs of interest to the two parties. Relationships between BLM 

personnel and permanent tribal staff, such as natural resources division directors, 

NAGPRA coordinators, planning personnel, tribal historic preservation officers, and 

other program offices can help maintain continuity. Relationships with other tribal 

groups, such as the National Congress of American Indians, Alaska Federation of 

Natives, the Institute for Tribal Environmental Professionals, and other partnership 

groups can also help the BLM maintain up-to-date information regarding tribal leadership 

and contacts.

3. Build Partnerships. Managers and program leaders at all levels of the BLM should seek 

out opportunities to build partnerships with Indian communities. Each BLM program is 

to ensure that the management of public lands benefits from full engagement with the 

original stewards of those lands through such means as cooperative agreements, 

interagency agreements, contracts, hires, and volunteers.

4. Collaborative Land Management.

a. Self-Determination Contracts and Self-Governance Funding Agreements. The 

1975 Indian Self-Determination and Education Assistance Act (ISDEAA; 25 U.S.C. 

450) provides for tribes to contract to take over certain federal programs benefiting 

tribes. These self-determination act contracts are known as “638” contracts. Initially, 

this program only applied to the BIA and Indian Health Service. However, later 

amendments to the act (Pub. L. 100-472, 1988; Pub. L. 103-413, 1994) expanded 

self-determination contracting to all DOI agencies. Federal and tribal representatives 

negotiated regulations for the ISDEAA, which can be found at 25 CFR 900. In 

addition, there is an internal agency procedures handbook, which also resulted from 

Federal and tribal collaboration. As amended, Public Law 638 consists of five titles. 

Those applicable to the BLM include Title I, Indian Self-Determination Act, and Title 

IV, Tribal Self-Governance.

Under Title I, BLM must enter into self-determination contracts with tribal 

organizations to assume programs, functions, services or activities that benefit Indians 

because of their status as Indians. Funding must be no less than is currently spent on 

the program. Contract proposals must be approved or declined within 90 days of 

receipt or they are automatically approved. Proposals can be declined for only one or 

more of five statutory reasons. Consult the Solicitor's Office as soon as you receive a 

self-determination contract proposal under Title I.

Under Title IV, self-governance tribes negotiate annual funding agreements with 

BLM to assume programs, functions, services or activities for the benefit of Indians 

because of their status as Indians. In the discretion of BLM, a self-governance tribe 
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can also negotiate to assume programs of special geographic, historical or cultural 

significance to that tribe through a self-governance funding agreement.

Contractible BLM programs include Indian minerals and the field survey portion of 

cadastral surveys.

Field offices are encouraged to identify and publish in the Department's annual 

Federal Register notice any programs, functions, services and activities that selfgovernance Tribes can assume.

b. Fire and Aviation Programs. The Fire and Aviation Directorate regularly partners 

with tribes and other agencies to maximize initial fire attack. The Fuels Management 

Program focuses on protecting communities and natural and heritage resources while 

providing for local economic opportunities. Hundreds of millions of dollars in recent 

years have significantly supplemented rural economies. Such contracts focus on the 

development of community wildfire protection plans, fuels treatments, biomass 

utilization, and consultations. Fire prevention and education teams consult with local

residents to help reduce human-caused fires and to implement fire prevention and 

education programs (see Chapter VI).

c. Cadastral Survey. The BLM Cadastral Survey Program has established strong 

relationships with the BIA’s Real Estate Services and Office of the Special Trustee 

for American Indians (OST) for the purpose of providing cadastral services on Indian 

trust lands. Principal components to this fiduciary trust program: (1) developing the 

Indian Lands Surveyor (BILS) program to install a highly experienced cadastral 

surveyor into each of the 12 BIA regional offices to expedite cadastral services to 

Indians; (2) creating a Certified Federal Surveyor (CFedS) Program to assist licensed 

land surveyors to continue their professional development and to implement a 

training program to certify hundreds of surveyors to work on Indian or trust lands, 

including training tribal surveyors; (3) improving the condition of the Public Land 

Survey System; (4) creating a cadastral Geographic Information System (CGIS) to 

graphically represent the records that compose land ownership and occupancy of the 

individual or tribe; (5) establishing cadastral survey project offices on reservations; 

and (6) providing title and mapping leadership in the Department’s buy-back 

program.

An inventory of survey needs on Indian trust lands developed in collaboration with 

the BIA and OST prioritizes work based on trespass abatement, timber harvest, 

mineral leasing, and other priorities related to Indian trust assets and helps guide 

disbursement of funds into individual Indian monetary accounts (see Chapter XIV).

d. Heritage Resources Management. In furtherance of the Inter-Agency 

Memorandum of Understanding (MOU) on the Protection of Indian Sacred Sites 

executed in 2012, the BLM should engage with tribal partners to build tribal capacity 

for the identification, evaluation, and protection of sacred sites. Tribes may be 
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interested in entering into agreements to share capability, expertise, and insight into 

how to foster collaborative stewardship of sacred sites and other properties of 

traditional religious and cultural importance. Field offices should also consult with 

tribes when developing site-specific protection and management plans that pertain to 

sacred sites or properties of traditional religious and cultural importance. Following 

consultation and commitment in agreement documents, tribal expertise and capability 

regarding stabilization, patrolling, interpretation, stewardship education, or 

ethnographic insights into site use and significance can strengthen the management of 

heritage resources on public lands.

5. Procurement.

a. Small Disadvantaged Businesses. The BLM is committed to increasing contracting 

opportunities for small business communities. Section 8(a) of the 1958 Small 

Business Investment Act (15 U.S.C. 14A) authorized the Small Business 

Administration to enter into prime contracts with Federal agencies and to subcontract 

the performance of the contract to small business concerns. Executive Order 11458,

Prescribing Arrangements for Developing and Coordinating a National Program for 

Minority Business Enterprise (34 CFR 4937), authorized the use of this provision to 

assist minority businesses and established the 8(a) program, as it is commonly called.

Many tribal businesses may be eligible to take advantage of their status as a Small 

Disadvantaged Business, an 8(a) participant, or a Historically Underutilized Business 

(HUB) Zone. Local procurement offices should contact tribal business offices and 

the Small Business Administration to encourage Indian tribal firms to bid on 

upcoming BLM contracts for which they may qualify. Small disadvantaged 

businesses must be owned by individuals who are “socially and economically”

disadvantaged and meet other conditions as defined by regulations. (See 13 CFR 

124.104.)

The 8(a) program assists in the expansion and development of existing, newly 

organized, or prospective profit-oriented small disadvantaged firms. Small 

businesses may apply for the section 8(a) program if they are owned and controlled 

by one or more persons who can provide evidence of having been deprived of the 

opportunity to develop and maintain a competitive position in the economy because 

of social and economic disadvantages. In Alaska, the corporations formed by 

ANCSA were legislatively approved for inclusion in the 8(a) program.

The HUB Zone program stimulates economic development and creates jobs in urban 

and rural communities by providing Federal contracting preferences to small 

businesses. These preferences go to small businesses that obtain this certification by 

employing staff who live in a HUB Zone and establishing a “principal office” in one 

of the specifically designated areas.
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b. 1910 Buy Indian Act (25 U.S.C. 47). Under this act, the Secretary of the Interior has 

broad discretionary authority to promote the purchase of the products of Indian 

Country. Though mandatory for the BIA, the act is discretionary for the BLM. Its 

regulations were issued in July 2013 (see 48 CFR 1401; 1452; and 1480). This act 

provides further authorization for BLM to offer procurement contracts to Indianowned businesses in their regions.

c. Indian Tribes Qualify as Not-for-Profit Organizations. The Internal Revenue 

Service has determined that federally recognized tribes qualify as not-for-profit 

organizations; thus, contributions to them may be tax deductible. Their status as notfor-profit organizations allows tribes to participate in, or apply for, special grants and 

awards restricted to such organizations. Field offices must check with their 

procurement offices to pursue opportunities to utilize such grants to advance common 

goals and program interests.

d. Contracting for Services, Expertise, or Products Needed for Decisionmaking. 

The BLM may require land use applicants to obtain information from tribes needed to 

fulfill its NEPA or NHPA requirements as a condition of the permit or authorization. 

Information may include knowledge about the management of natural resources or 

cultural properties, such as current or past land use practices, resource utilization, or 

distribution of natural resources. In addition, the BLM itself may contract or pay for 

tribes and Indian individuals to produce reports. (See Chapter IV on land use 

planning and Chapter X on cultural resources for more information on NEPA and 

NHPA requirements for decisionmaking and compliance.) The BLM’s ability to 

obtain this information may be impossible without assistance of an Indian tribe or 

tribal representative. Indian tribes often have occupied lands near or utilized portions 

of public lands for long periods of time. Their insights into past land conditions and 

the impacts of human use and occupation on ecosystems extend back in time for

hundreds of years. Thus, their knowledge of natural and human interactions on the 

landscapes managed by the BLM might be shared with the BLM through—

 Studies of plant or animal communities and how past land practices affected 

species diversity and distribution;

 Fire regime studies that consider how frequently landscapes were deliberately 

burned by Native populations;

 Forestry studies that seek an understanding of pinyon-juniper canopy 

composition back through time based on ethnographic accounts of pinyon nut 

harvesting; and

 Ethnographic reports, National Register nominations, or other specific 

information regarding historic properties, trails, sacred sites, and landscapes.

6. Human Resources.
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a. Introduction. Field offices should consult their local servicing personnel office 

regarding which hiring authorities, tools, and programs may be used to attract 

underrepresented Native Americans, either directly to the BLM employment rolls or 

indirectly through a partner entity. Federal laws, Executive orders, and implementing 

regulations from the Office of Personal Management and the Equal Employment 

Opportunity Commission mandate certain programs to ensure equal opportunity in 

employment and equal treatment of employees. (See, for example, Executive Order

13592, Improving American Indian and Alaska Native Educational Opportunities and 

Strengthening Tribal Colleges and Universities (3 CFR 13592; December 2, 2011)). 

The Native American Program requires special emphasis in providing employment 

opportunities for Indian people regarding Federal employment opportunities. The 

ISDEAA establishes Indian preference hiring for Federal programs that are designed 

to benefit Native people. This mandate is most often applied within the BIA and 

Indian Health Services but is not limited to these agencies. It requires that Federal 

contracts to Indian organizations or for the benefit of Indians give preference and 

opportunities for training and employment to Indians to the greatest extent feasible.

b. Employment Opportunities for Native Americans and Alaska Natives. The BLM 

should develop Native American recruitment programs, including the Pathways 

Program, and participate in career days with tribes and Indian schools. This assists in 

attracting qualified personnel to the agency so that its workforce can be more 

representative of the nation’s cultural diversity. These recruitment efforts should be 

focused in tribal communities near lands managed by the BLM for which tribes have 

cultural, economic, or religious interests.

Although the BLM does not utilize Indian preference hiring per se, the agency does 

allow self-identification for employment statistics. ANILCA Section 1308 

(applicable to land managing agencies in Alaska) authorizes the hiring of individuals 

with specialized, localized knowledge or expertise. 

Internship opportunities for tribal youth as well as challenge cost-share projects in 

partnership with tribes and the BIA offer additional opportunities to bolster Indian 

employment while facilitating mutually supported projects. Several authorities and 

programs are currently in place that can assist in these efforts, including the Special 

Emphasis Programs. All BLM offices should consider the applicability of the 

following internship programs to boost Native American and Alaska Native hires 

within the agency:

 The BLM Intern Not-to-Exceed hiring authority allows a current student to be 

temporarily appointed to Federal service for 1 year or less via competition. 

 Schedule D BLM Career Intern hiring authority provides current students with 

paid opportunities to work in Federal agencies and explore Federal careers 

while still in school. 
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 The Schedule D BLM Recent Graduates authority allows the agency to 

appoint individuals who recently graduated from qualifying institutions or 

programs to an intense 1-year on-the-job training and developmental program 

in the qualifying occupational series or career path. 

 DOI Secretarial Direct Hire Authority for Resource Assistant Internship 

(DHA-RAI) Program can be used to attract and recruit underrepresented 

groups and to fill mission-critical and hard-to-fill occupations. These 

individuals are often not on the employment rolls of the BLM. These 

internships are for a minimum of 11 weeks of full-time work.

 Public Land Corps Special Hiring Authority programs provide work and 

educational opportunities in the areas of natural and cultural resource 

conservation and/or development. They are geared toward individuals in the 

16–25 age range. The Public Land Corps program allows the BLM to partner

with organizations to employ economically, physically, or educationally 

disadvantaged youth, using a contract, financial assistance, or cooperative 

agreement.

Programs such as these increase the technical knowledge of tribal members and lead 

to the employment of Indian youth within the BLM. In addition to meeting the 

agency’s affirmative action goals, providing educational opportunities and 

employment to tribal members is a powerful demonstration of the BLM’s sincerity in 

establishing positive long-term working relations with tribes.

A good example of this is Arizona’s American Indian Youth Cultural Resource 

Internship Program. Authorized through a series of cooperative agreements and 

individual task orders since 2010, this program recruits tribal youth to conduct a variety 

of historic preservation activities within the Grand Canyon-Parashant National 

Monument. Southern Paiute, Dakota, and Navajo youth serve as interns and crew chiefs. 

They camp in the monument conducting inventory, recording sites, processing artifacts, 

and completing ceramic and clay analyses. Sessions last for 10 weeks. The national 

monument managers (National Park Service (NPS) and BLM) provide funding, project 

supervision, and logistical support while the Kaibab Band of Pauite Indians supplies the 

student interns, crew chiefs, and vehicles. This partnership exposes Indian youth to a 

variety of professional agency personnel who encourage them to consider land and 

resource management careers. It enhances Federal agency knowledge of traditional 

Southern Paiute culture and traditions while preparing Indian youth for higher education 

opportunities and careers in public land management.
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A more traditional internship program operates between the Montana State Office and the 

Salish-Kootenai College for the purpose of providing internships for students in a tribal 

college. This Cooperative Agreement funds a nontraditional program for educating 

natural resources students. It strengthens student and community knowledge about the 

BLM. It has increased student interest in career opportunities within the BLM and aided 

agency efforts to diversify its workforce.

7. Education. The BLM can propose and negotiate cooperative agreements between the 

agency and tribes in the fields of education and employment. The BLM should seek out 

partnerships with Indian educational institutions to assist in the development of curricula 

or implementing cooperative education programs. Project Archaeology enables the BLM 

and tribes to develop tribally-relevant curricula and lesson plans that can strengthen 

science competencies and interest Indian youth in careers in resources management. For 

instance, online and distance learning programs can be developed in partnership with 

tribes to offer certificates in natural and heritage resource management. Field offices 

should ensure that Indian schools and children are included in their education outreach 

programs.

Fully accredited tribal colleges and universities located in the United States are eager to 

provide practical experiences and opportunities for their students. The BLM and tribal 

colleges can partner to establish opportunities for students to conduct research and 

become involved with public land management issues. Whether the project is 

documenting threatened or endangered plants or animals or conducting ethnographic 

studies, BLM-tribal college partnerships offer positive and enriching opportunities for the 

agency and tribes to appreciate the balance between multiple land use management and 

tribal cultural and economic interests.

Several current BLM-tribal partnerships support educational opportunities for tribal 

youth. They create more meaningful educational curricula for young Native Americans 

and strengthen their opportunities for meaningful employment.

Examples include Bridging the Divide: A Natural and Cultural Resource Field Camp for 

Tribal High School Youth. Partners include the Montana State Office, the DepartmentBLM Youth Corps Project, the Shoshone-Bannock Tribes, and Chief Dull Knife College. 

The program seeks to develop outdoor curricula through outdoor experiences and 

scientific exploration that connect tribal students to their natural and cultural heritage. 

Curricula and lesson plans provide teachers with educational background and tools to 

explore various aspects of natural/heritage resources management. The educational 

materials will be made available on agency and tribal websites for use or adoption by 

outdoor education programs, educators, and agencies. In Fiscal Year 2014, for example, 

the focus was on wet meadow ecosystems and traditional uses of blue camas.
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8. Training Opportunities. The Secretary’s policy charges the Department of the Interior 

University with the responsibility to develop courses to enhance mutual understanding of 

cultural perspectives and the administrative requirements for tribal consultation.

Managers and staff should complete the most recent tribal consultation training available 

through the Internet from either DOI Learn or other sources. The BLM NTC also 

developed a learning module on tribal consultation for managers and another on tribal 

consultation in Alaska. The OST also prepared a course on United States-tribal trust for 

the NTC. An additional training course, Working Effectively with Tribal Governments,

was developed by the Department and the Advisory Council on Historic Preservation

(ACHP). Training is also available outside the Federal Government. The BLM should 

provide tribal governments with the same access to its training programs as it provides to 

other Government agencies.

Managers and program leaders involved with tribal issues and tribal consultation should 

complete the most recent training courses on tribal relations offered for Federal 

Government/DOI/BLM employees and document this within their annual individual 

development plans. Check websites listing training opportunities maintained by the 

Department of the Interior University or the BLM National Training Center for current 

course offerings.

BLM offices should invite tribes to attend and participate in BLM training courses related 

to NEPA, lands, right-of-way (ROW), cadastral survey, and heritage resources. Holding 

periodic joint training courses may familiarize BLM staff with tribal cultural and 

governmental structure and familiarize tribal leaders, staff, and members with BLM’s 

legal authorities, mission, history, and programs. Training courses should be tailored to 

address issues of local interest to tribes; both BLM and tribes can benefit from a greater 

understanding of how Federal programs can best coordinate and consult with tribal 

governments. As funding allows, the BLM may send tribal staff to training at the NTC. 

Access to online training course should also be made available to tribes. The dialogue 

and multicultural perspectives that result from such exchanges enhance both the 

effectiveness of training as well as government-to-government consultation.

A number of tribes offer their own cultural awareness training, and BLM offices should 

take advantage where they are available. Examples include training offered by the 

Confederated Tribes of the Warm Springs, Confederated Tribes of the Umatilla Indian 

Reservation, and Shoshone-Bannock Tribes. Such classes strengthen BLM’s staff 

understanding and appreciation of tribal traditional, cultural, and religious values, as well 

as treaties and other tribally reserved rights on Federal lands. Managers should 

encourage BLM staff to attend gatherings sponsored by tribal entities, tribal consortiums, 

or nonprofits offering specialized knowledge and addressing issues important to local 

people (such as the Alaska Federation of Natives annual conference). 

States are encouraged to co-host workshops with tribes concerning tribal relationships, 

traditional cultures, and consultation. By including presentations by tribal and BLM 

leaders and displaying traditional technologies and crafts, a mutual understanding of 
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traditional use areas, aboriginal homelands, and the full scope of tribal interests can be 

enhanced. One example follows.

Oregon. Eugene District. Interagency-Intertribal Sponsored Awareness Forum. In 

coordination with the Willamette National Forest and four tribes, the Eugene District cohosted an all-day event for 100 Forest and BLM employees to hear about Indian law, 

local tribal history, and agency/employee responsibilities to tribes. Tribal chairpersons 

and members from the Confederated Tribes of Grand Ronde, Confederated Tribes of 

Siletz Indians, Confederated Tribes of Warm Springs, and Confederated Tribes of Coos, 

Lower Umpqua, and Siuslaw Indians participated in a facilitated panel discussion and 

shared their tribes’ histories. Tribal artists and traditional craft specialists participated by 

providing presentations and displays. Attendees were encouraged to engage and ask 

questions and to consider how their jobs contributed to the stewardship of lands and 

resources in which tribal members retain an interest.

The BLM offices may extend invitations to tribal political and cultural leaders to address 

BLM offices. This interaction could be part of Native American History Month 

activities, though it should not be limited to those occasions. These are excellent means 

to enhance the agency’s appreciation of an individual tribe’s culture, history, and living 

traditions. Opportunities may also exist to partner with other Federal agencies to sponsor 

tribal awareness forums to learn about Indian law, local tribal history, and agency 

responsibilities toward tribes.

D. Financial Support for Tribal Participation in BLM Decisionmaking

In a departure from previous manual and handbook direction, the BLM can now provide funding 

to tribes to facilitate their participation in the NEPA and NHPA processes under several 

circumstances. See also MS-1780, section 1.6.B, and H-1780-1, appendix 2. It must be 

emphasized that this new compensation policy allows for compensation but does not mandate it. 

Such compensation for consultation is not legally required; however the BLM has authority to 

provide it directly under certain circumstances, or require that compensation needed to acquire 

information necessary for the BLM to make decisions regarding land use applications or 

authorizations be provided by third parties.

The BLM may utilize its own appropriated funds or cost reimbursable accounts to reimburse 

tribal members for travel expenses to attend meetings in connection with NEPA, FLPMA, or the 

NHPA Section 106 processes or time taken to discuss proposed projects, heritage resource site

management, or traditional use areas. (See the ACHP Memorandum, “Fees in the Section 106

Review Process,” July 6, 2001, www.achp.gov/feesin106.pdf.)
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E. Accountability

1. Employee Performance Appraisal Plan Considerations. Line managers and those 

staff members routinely engaged in actions with tribal implications must be evaluated 

regarding their efforts to build tribal relations and carry out effective consultation as part 

of their employee performance appraisal plan (EPAP) evaluations. Such annual 

performance reviews should include elements covering affirmative action, joint training, 

cooperative education and outreach, cooperative management programs, meeting the 

BLM’s trust responsibilities, and consultation, as appropriate.

Check the most current version of the DOI Strategic Plan to tie in activities and 

accomplishments to the current identified mission areas of emphasis (e.g., 2014–2018 

Strategic Plan, Mission Area 2, Strengthening Tribal Nations and Insular Communities, 

which includes several goals: Goal 1, Meet our Trust, Treaty, and Other Responsibilities 

to American Indians and Alaska Natives; Goal 2, Improve the Quality of Life in Tribal 

and Native Communities; and Goal 3, Empower Insular Communities). Many activities 

carried out by managers and staff support these mission area goals through Indian treaty 

rights, subsistence rights, supporting self-governance and self-determination, creating 

economic activities, strengthening Indian education, and creating economic opportunities.

While EPAP strategic goals and individual performance measures must be tailored to fit 

individual needs and local program emphases, suggested language for managers’ EPAPs 

follows:

 Seeks opportunities to develop ongoing partnerships with tribes and to ensure 

that: land use decisions reflect thorough and well-documented government-togovernment consultation; consultation with tribes begins early in the decision 

process and is ongoing; and resulting decisions are documented to tribes and

demonstrate how tribal issues and concerns were taken into account. 

 Facilitates tribal access for tribal religious and traditional uses; maintains a 

professional staff capable of carrying out timely and effective government-togovernment consultation and who seek out and establish educational, training, 

interpretive, contracting, fire, cadastral, or minerals programs of joint interest and 

benefit to tribes and the BLM.

 Takes steps to fully utilize information gathered from tribes regarding traditional 

uses, access concerns, and resource issues and protects such sensitive information 

to the extent allowed by law from public disclosure.

 Personally participates in tribal consultation and establishes professional relations 

with tribes, tribal governments, and tribal staff which facilitate long-term, positive 

partnerships involving land management, resource protection, and economic 

development.
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 Ensures that quality cadastral products and/or services are maintained for Indian 

Country. Promotes the benefits of cadastral services to improve the stewardship 

on Indian trust and restricted lands. Oversees effective technical assistance, 

training, and support on land survey issues for Indian lands and minerals. Assists 

the BIA in collecting survey needs and requests from trust and restricted 

landowners and tribal realty service providers and ensures that the delivered 

surveys meets the needs of the requesting party.

2. DOI Reporting Requirements on Tribal Consultation. By December 31 of each year, 

BLM must present to the Department's Tribal Governance Officer a comprehensive 

report on BLM efforts in the past year to promote consultation with Tribes (512 DM 4.8).

Managers are responsible for ensuring that such reporting encompasses all programs and 

must coordinate with the BLM’s Tribal Liaison Officer regarding exact content and 

formatting for data submissions. Effectiveness of consultation can be measured in an 

assessment of the amount and extent of dialogue that took place; the degree to which 

tribal feedback affected planning or land use decisions; sentiment of tribes regarding final 

decisions; and ongoing tribal involvement in mitigation, monitoring, or reclamation 

activities.
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CHAPTER III. TRIBAL CONSULTATION GENERAL CONSIDERATIONS

A. Distinguishing Between Notification, Coordination, and Consultation

The BLM involvement with tribes includes three important and distinct forms of interaction. 

1. Notification. Notification is a one-way form of communication that provides 

information, data, or reports to tribes by the BLM, often leading to tribal consultation if 

the tribe so requests. Notification is usually associated with a formal process such as 

initiation of land use planning or environmental impact statement (EIS) efforts, or is 

related to the notification requirements of other authorities such as NAGPRA. 

Where legally required notification is delivered through certified mail or delivery service, 

a return receipt or delivery confirmation is adequate demonstration that BLM has 

satisfied the notification requirement. With some tribes and individuals, however, a 

notice may not be deliverable for a variety of reasons. A receipt or report showing that 

delivery was not made does not meet the BLM’s requirement. To avoid false starts and 

delays, BLM managers and staff should select a notification strategy that has a high 

expectation of success.

2. Coordination. Coordination is generally conducted with tribal representatives such as a 

Tribal Historic Preservation Officer (THPO), environmental professionals (e.g., air 

program directors and immediate staff), and any other personnel or officials who are 

defined as representatives by the tribes. These representatives are frequently contacted in 

advance of an action or policy, guidance, or rulemaking in which the BLM thinks tribes 

will have an interest. The purpose of coordination, among other things, is to: (1) assist 

BLM in assessing whether a particular action or decision may affect tribal interests; 

(2) involve tribes early in the action and/or decision development process to ensure 

meaningful tribal input; and (3) assist BLM in determining where consultation with 

elected or duly appointed tribal leaders may be appropriate. Tribal representatives may 

indicate that an action or decision does not affect tribal concerns or interests and that 

consultation is not necessary. This may help to streamline the consultation process.

3. Consultation. Consultation is designed to ensure meaningful and timely meetings or 

discussions with elected or duly appointed tribal leaders (or their authorized 

representatives) and BLM decision makers as they pertain to proposed BLM actions. 

Consultation is an opportunity for tribes to discuss the potential effects of planned agency 

actions on tribal interests and to make recommendations to the agency. 

Fundamental principles reflected in the Department's Tribal Consultation Policy specify 

that —

 DOI agencies will demonstrate a meaningful commitment to consultation by 

identifying and involving tribal representatives in a meaningful way early in the 

planning process;
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 Consultation is a process that aims to create collaboration with Indian tribes and 

to inform Federal decision makers—an exchange of information which promotes 

enhanced communication that emphasizes trust, respect, and shared responsibility; 

such communication will be open and transparent without compromising the 

rights of Indian tribes or the government-to-government consultation process; and

 DOI agencies will seek to promote cooperation, participation, and efficiencies in 

the consultation process to ensure that future Federal actions are achievable, 

comprehensive, long lasting, and reflective of tribal input.

The BLM considers consultation to mean direct two-way communication between the 

agency and an American Indian or Alaska Native tribal government regarding proposed 

BLM actions. The purpose of consulting is to obtain substantive tribal input and 

involvement during the decisionmaking process. Sometimes the consultation process 

itself, through sharing and discussing cultural and natural resource information, can 

enrich and reinvigorate tribal knowledge and appreciation for historic properties, 

resources, and sites located on public lands.

The precise nature of the interaction should be mutually agreed to between individual 

tribes and the BLM through consultation. It will vary depending on the organization of 

tribal governments and the scope and complexity of the land management issues being 

discussed. The BLM offices are encouraged to develop MOUs with individual tribes that 

establish procedures to ensure that adequate good faith consultation will occur.

The Department Tribal Consultation Policy notes that sending a letter to a Tribe and 

receiving no response does not constitute a sufficient effort to initiate tribal consultation. 

(See MS-1780, Tribal Relations, Appendix 2, Judging the Adequacy of Tribal 

Consultation, for a detailed discussion.)

All land use planning requires tribal consultation but some land use actions may not. 

Consultation is necessary on land use actions when the BLM manager determines that the 

nature or location of a proposed land use could affect tribal interests or concerns. This 

determination should be an informed one, based on previous consultations and agreedupon arrangements with the tribes involved.

Where Indian trust assets are involved, BLM must consider a complex framework of 

legal responsibilities and should consult the Solicitor's Office before making a decision.

Consultation regarding BLM decisionmaking always includes these obligations—

 Identifying appropriate tribal governing bodies and individuals from whom to 

seek input;

 Conferring with appropriate tribal officials and/or individuals and asking for their 

views regarding land use proposals, changes in rules or regulations, policies and 

initiatives, or other pending BLM actions that might affect tribal cultural 
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practices, economic development, access to valued locations, or other aspects of 

tribal life;

 Treating tribal information and preferences as a necessary factor in defining the 

range of acceptable public land management options; and

 Creating and maintaining a permanent record to show how tribal information was 

obtained and used in the BLM’s decisionmaking process.

Appendix 5 provides guidance for the preparation of a tribal consultation strategy. Such 

a strategy can help ensure that the roles of key players are identified and that the goals, 

target audiences, key messages, strategies, and tactics are identified. Whether or not a 

proposed action or land use justifies preparation of a formal consultation strategy, 

Appendix 5, Example of Contents for Tribal Consultation Strategy, should be reviewed to 

make sure that consultation efforts take into account all the factors that will condition its 

success.

B. BLM Representatives in Consultation

1. Importance of Federal Official with Decisionmaking Authority. Government-togovernment consultation requires the participation of a Federal official with 

decisionmaking authority and the tribal chairperson or other representative official 

designated by the tribal chair or council. The Department Tribal Consultation Policy 

provides: "The appropriate Departmental officials are those individuals who are 

knowledgeable about the matters at hand, are authorized to speak for the Department, and 

exercise delegated authority in the disposition and implementation of an agency action

(512 DM 5.5A). 

The BLM line managers, staff, and tribal authorities must understand the role of 

delegated authority in the consultation process. (See MS-1203, Delegation of Authority.) 

The Secretary of the Interior has broad powers to delegate authority that derive from 5 

U.S.C. 302, Reorganization Plan No. 3 of 1950, etc., and that authority may be delegated 

through the Department’s management hierarchy to the lowest practical level. However, 

an officer who delegates or re-delegates authority does not divest himself or herself of the 

power to exercise that authority, nor does the delegation or re-delegation relieve that 

official of the responsibility for actions taken pursuant to the delegation.

In most instances, the person with the most detailed knowledge and understanding of 

local tribal issues will be the local field office manager, who is often the first to contact a 

tribe on any issue. It may be necessary to explain the legal basis and robust nature of 

BLM delegations of authority to assure Indian tribes that their engagement with a local 

BLM officer is time well spent with a decision maker fully authorized to represent higher 

levels of authority within the agency and department.

While day-to-day consultation generally takes place at the field office level, state 

directors and the Director have important consultation responsibilities as well (see 
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MS-1780, Tribal Relations, Section 1.4, Responsibility). Participation by State and 

Washington Office officials may be necessary for complex or highly controversial 

projects and is at the discretion of the officials involved.

2. Role of Staff. The BLM program specialists and staff play an invaluable role in 

gathering information and briefing their managers on issues affecting BLM-tribal 

relations. They provide professionally sound information, recommendations, and advice 

regarding tribes’ traditional and ongoing uses of public lands, practices and beliefs, 

locations and uses of importance on public lands, and other information necessary for 

consultation. They interact frequently with their tribal counterparts within tribal 

governments to facilitate compliance with laws and regulations requiring tribal 

consultation and input into federal decisionmaking. Staff often arranges consultation 

meetings and meets with tribal staff to discuss issues once BLM managers and tribal 

officials decide it is time to consult on a matter. They obtain and share data needed for 

decisionmaking. They may identify opportunities for cooperative agreements or other 

proactive relationships in the fields of education, outreach, and research with tribes. 

They play key roles in contracting and the management of sensitive information. BLM 

staff, however, cannot represent the BLM in government-to-government interactions.

3. Role of Third Parties. Contractors cannot negotiate, make commitments, or otherwise 

give the appearance of exercising the BLM’s authority in consultations. Therefore, as a 

general rule, consulting firms working for land use applicants may be approved by BLM 

to carry out the following limited and restricted activities to facilitate consultation—

 Gathering and analyzing data,

 Preparing reports,

 Arrange meetings,

 Facilitating field trip logistics, and

 Managing compilation of data and records as part of the administrative record.

While these steps are helpful, the BLM ultimately retains the responsibility to consult 

with Indian tribes on a government-to-government basis. It cannot be transferred by the 

BLM to other entities.

C. Identifying Tribes and other Indian Parties for Consultation

1. Individual Tribes. Specific consultation should focus on tribes known to have concerns 

about the geographic area under consideration and the particular resources and/or land 

uses involved. In addition, nonresident tribes with historic ties should be given the same 

opportunity as resident tribes to identify their selected contact persons and their issues 

and concerns regarding the public lands.
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2. Points of Contact within Tribes. For each tribe, BLM offices should develop and 

maintain current lists of—

 Tribal officials (e.g., chairperson, president, council members, etc.),

 Appropriate staff contacts for specific programs and issues (e.g., energy 

development, natural resources, lands, cadastral survey, economic development, 

THPO, etc.),

 Traditional cultural or religious leaders, and

 Lineal descendants of deceased Native American individuals whose remains are 

discovered on public lands or are in Federal possession or control.

a. Tribal Officials and Staff. Initiate government-to-government consultation through 

the presiding government official of the Indian tribe (e.g., the tribal chair or 

governor). If tribal officials inform the BLM that it is acceptable for the agency to 

correspond directly with their attorneys, the BLM must respect this request and must

prepare correspondence to the attorneys with a copy provided to the elected tribal 

officials.

b. Traditional Cultural and Religious Leaders. Official representatives of the tribe 

should be the first source for identifying traditional cultural and religious leaders and 

other individuals with specialized knowledge. These may change after tribal 

elections or a change in tribal administration. 

c. Lineal Descendants. For purposes of NAGPRA, lineal descendants of named Native 

American individuals have legal priority for repatriation or transfer of human 

remains, funerary objects, and sacred objects. A lineal descendant is an individual 

tracing his or her ancestry directly and without interruption by means of the 

traditional kinship system of the appropriate Indian tribe or by the common law 

system of descent to a known Native American individual whose remains, funerary 

objects, or sacred objects are being requested. This standard requires that the earlier 

person be identified as an individual whose descendants can be traced (see 43 CFR 

10.14(b)). In other words, lineal descendants may be identified only when a personal 

identity (i.e., name) is known of the Native American human remains, individual 

buried with the funerary objects, or individual that owned the sacred objects. The 

BLM may not readily know the identity of lineal descendants without some research 

and may make initial contact through the larger unit of which they are members 

(tribes, communities, etc.) or through genealogical information such as descent 

records held by the appropriate BIA agency office. 

3. Coordinating Consultation across Administrative and Jurisdictional Boundaries. 

BLM offices should seek partnership opportunities with other Federal agencies to jointly 

meet with tribes to discuss land management issues relevant to both agencies and 

multiple tribes. As an example, the Oklahoma Field Office participates in the annual 
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U.S. Forest Service “To Bridge a Gap Conference,” which provides the BLM with a 

chance to meet with a wide variety of tribal leaders. Joint interagency funded tribal 

liaison positions may carry out such consultation at a savings to the Federal agencies.

Interstate pipelines, major infrastructure projects, and regional EISs, such as the Final 

Programmatic Impact Statement for Solar Energy Development in Six Southwestern 

States (Solar PEIS), provide opportunities for BLM offices to consolidate and coordinate 

tribal consultation. Executive Order 13604, Improving Performance of Federal 

Permitting and Review of Infrastructure Projects (3 CFR 13604; March 22, 2012) 

requires such coordination to facilitate the review of nationally or regionally significant 

infrastructure projects. Rather than multiple states contacting tribes, such as the Hopi or 

Navajo, that frequently have concerns and interests in several states, BLM offices are 

encouraged to establish a lead BLM office to coordinate all consultation with tribes 

having interests across an interstate region. Such arrangements should be negotiated and 

stipulated in formal agreements signed by the tribes and the multiple BLM offices and the 

State Historic Preservation Officers (SHPO) involved.

4. Multi-tribal Organizations. Official tribal consultation takes place as part of 

government-to-government relations between the BLM and individual federally

recognized tribes. However, tribal relations can also be enhanced through the 

development of positive working relationships with tribal consortiums. Examples of such 

organizations include Affiliated Tribes of the Northwest Indians, California Association 

of Tribal Governments, and Intertribal Council of Arizona

Official repatriation or transfer of Native American human remains and/or cultural items 

subject to NAGPRA can only take place with either lineal descendants or claimant Indian 

tribes. However, tribes often work together on NAGPRA consultation and claim 

activities. Therefore, coordination of NAGPRA activities may occur with a multi-tribal 

organization, although such cannot replace government-to-government consultation.

BLM field offices should maintain working relationships with such organizations and are 

encouraged to make presentations to them at their meetings. As discussed in the 

Secretary’s 2011 policy governing consultation with Indian tribes, it is appropriate to 

hold open tribal meetings for groups of tribes to attend to discuss national or regional 

issues. This can be an efficient means of communicating BLM activities to groups of 

tribes. Individual government-to-government consultation with individual tribes will still 

be required; however, attendance by BLM tribal liaisons, staff, and line managers fosters 

communication with a wider tribal audience than might otherwise be possible.

National tribal partnership groups, which include representatives of tribal governments, 

can be contacted as well. Their input may be insightful for large planning initiatives or 

large-scale EISs. Examples of such organizations—

 National Tribal Air Association,
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 National Tribal Toxics Council,

 National Tribal Water Council,

 Inter-Tribal Council of the Five Civilized Tribes

 United Southeast Tribes,

 National Tribal Operations Council, and

 Regional Tribal Operations Councils.

5. With Whom to Consult under Heritage Resource and General Authorities 

(Summary). The following chart indicates the types of Indian tribal officials and/or 

individuals with whom the BLM is obligated to consult. Refer to Chapter IV and 

individual program chapters for more details regarding the BLM’s consultation 

obligations under various authorities.

D. When in the Decisionmaking Process to Start Consultation

When it becomes apparent that the nature and/or the location of an activity could affect Indian 

tribal issues or concerns, the BLM manager should initiate appropriate consultation with 

potentially affected Indian tribes, as soon as possible, once the general outlines of the land use 

plan (LUP) or the proposed project-specific land use decision have been determined.

Although land use planning is the best time to identify landscape-scale issues and other broad 

tribal concerns, the BLM must address tribal concerns when approving specific land use 

authorizations and making other decisions, such as revising significant policies, rules, and 

regulations.
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Whom To Consult

NHPAARPANAGPRAFLPMANEPAAIRFAE.O. 13007

Tribal representative whom the tribal 

government has designated for this 

purpose

X X X

2

X X X X

Lineal descendant of an identified 

Native American individual X

1

Traditional religious leader X

3

X

3

Appropriately authoritative 

representative of an Indian religion X

3

1

Lineal descendants (who need not be tribal members) have legal precedence for repatriation and 

custody.

2

Indian tribes also consulted.

3

A tribal government may designate a “traditional religious leader” or an “authoritative 

representative” as the tribe’s representative for consultation under AIRFA or Executive Order 

13007. Under NAGPRA, a traditional religious leader is a person recognized by tribal members 

as responsible for performing certain cultural or religious duties or a leader of the tribe or 

organization’s cultural, ceremonial, or religious practices, as defined in 43 CFR 10.2(d)(3).

Figure III-1 With whom to consult depends on the particular legal authority.

E. Preparing and Initiating Tribal Consultation

The first step to prepare for consultation is to identify a clear purpose for consultation and

identify with whom such consultation should take place. It is critically important to know the 

tribes and the people with whom you are consulting.

The second step is to review the record of what is known about the relevant concerns of tribes 

who may wish to consult. Recorded sources that should be reviewed—

 Cultural history of the tribe up to present (lands, treaties, etc.),

 Governmental organization,

 Primary tribal officials and staff contacts,

 Previous correspondence with tribes,

 Records of previous consultation,

 Public participation records for LUPs,

 Plan protest records,

 Transcripts of public hearings, and

 Minutes of public meetings.
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Pay particular attention to land claims; boundary disputes; water rights; hunting, fishing, and 

gathering concerns; past and current tribal economic development proposals; ethnographic 

studies; and published and unpublished documentary sources. Such research should be 

undertaken to identify traditional use areas or tribal development plans that are closely associated 

with lands or resources which may be affected by BLM actions.

If MOUs have been established with tribes regarding consultation procedures, the BLM will 

adhere to the procedures, contacts, and information requirements specified in the agreement.

Otherwise, the third step is to directly contact tribal governments. The first contact is by letter to 

the chief executive of the tribe with follow-up telephone call(s) if field offices suspect that mail 

service may not be reliable or if there is a potential for tribal concern based on the conclusions of 

step 2 above. If the tribe has previously designated a representative to serve as a BLM contact, 

the BLM should send a courtesy copy of the BLM letter to that individual. 

Unless constrained by an emergency situation, such as emergency stabilization and rehabilitation 

necessitated by wildfires, the BLM field offices should allow for tribes to comment at least 30 

days after their receipt of documentation about a proposed action. This should be considered a 

minimum timeframe which should be lengthened where possible, especially if tribal council 

schedules are unlikely to be able to accommodate BLM scheduling needs.

The fourth step is to follow up with tribal representatives. If tribal representatives have been 

designated to consult with the BLM, the agency should follow its initial government-togovernment contact by communicating with those individuals. Consultation at this level is 

generally conducted by BLM staff with tribal staff or other tribal members who have been 

identified as spokespersons to provide information about cultural and religious values or other

concerns.

F. Correspondence Content 

Correspondence sets the stage for successful consultation. A good letter to initiate consultation 

should be directed to the appropriate designated tribal representative and include—

 Its purpose;

 Sufficient details of the proposed action so that the reader can understand its extent and 

likely impact on the environment;

 A detailed map of the proposal at an appropriate scale;

 A summary of applicable laws and policies governing the BLM’s consultation process 

and decisionmaking along with a clear explanation of the extent of BLM discretionary 

decisionmaking under the applicable statutes;

 An explanation of upcoming opportunities for tribal input into BLM decision points and 

what the BLM needs to know at those points;
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 An invitation for tribes to specify how they would like to be engaged in this 

decisionmaking process;

 A description of the kind of input needed (such as identification of traditional use areas, 

access needs, or sacred sites);

 An opportunity to schedule a face-to-face meeting;

 A request for the names and addresses of other persons who should be notified or 

consulted;

 An explanation of the role of any delegated authority and BLM staff responsibility with 

regard to tribal consultation;

 Identification of a BLM contact person who can provide further information about the 

project and how to reach him/her; and

 A specific date by which the BLM would like the tribe to respond.

The BLM should ask tribes for information regarding—

 Concerns they have about the proposed action and how to resolve any issues that might 

affect tribes;

 How to resolve adverse effects on traditional resources, use areas, trails, and natural or 

heritage resources identified in reviews of existing data for the area;

 Places of traditional religious or cultural importance that might exist but have not been 

identified in background data reviews for the project:

 Treatment of human remains and cultural items as defined by NAGPRA if discovery, 

excavation or removal of those remains and items is anticipated: and

 The necessity for the BLM to contact any traditional leaders or religious practitioners. If 

the BLM is already aware of such leaders or practitioners, or if the tribe has designated 

representatives to act as liaisons with Federal agencies, the letter should state that the 

BLM plans to contact those individuals as well.

Clauses that might be appropriate under certain circumstances—

 Referrals: “If you are not the appropriate individual to receive this request, please advise 

whom we should contact.”

 Flexible meeting proposals: “If this time and location are not appropriate, please contact 

[_____] within [___] days prior to the scheduled meeting to make alternative meeting 

arrangements.”

 Documentation requests: “Please indicate on the enclosed map, if possible, areas of 

specific concern,” or “Please provide or refer us to any available information that would 

help us to understand the significance and nature of your concerns in the [area of 
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proposed action] for the [proposed action] for the [tribe name],” or “Please provide us 

with tribal historic and current Area of Interest maps, county and state lists, or relevant 

GIS files if available.”

If a letter is returned as undeliverable, include the canceled, unopened letter in the official file 

and, if appropriate, begin more direct (and documented) attempts to carry out the notification or 

consultation.

G. General Features of Consultation

1. Face-to-Face Meetings. Neither BLM managers nor tribal officials have the time to 

meet face-to-face regarding every issue affecting the two parties. However, face-to-face 

consultation meetings are often the most effective way to achieve the objectives of

consultation (seeking, discussing, and considering the views of other participants). Such 

face-to-face meetings are especially helpful for—

 Annual briefings provided to tribal councils regarding major ongoing and

foreseeable actions and programs;

 Consultations concerning resource management plans (RMP), EISs, land tenure 

adjustments, other major undertakings, or in responses to controversies; and

 When tribal feedback is needed to define what they consider to be “Departmental actions 

with tribal implications” as stated in the Secretary’s Policy on Tribal Consultation (512 

DM 5).

If relevant to the meeting agenda, ask tribes to suggest mitigation options. The best 

mitigation methods to resolve a particular tribal issue may be something the BLM, as 

outsiders, never considered. Try not to restrict the discussion to standard mitigation 

approaches the BLM would apply to most land use conflicts. The best way to approach 

this is to ask tribal representatives to not only identify their concerns but also to suggest 

potentially effective mitigation strategies to deal with them, including the most effective 

measures to reduce project effects if complete avoidance is not feasible.

2. Regularly Scheduled Meetings with Indian Tribes. The BLM managers should 

determine tribal preferences for information sharing and consultation. The BLM 

managers and staff should consider meeting with tribes in their areas after the office’s 

annual work plan has been prepared. Regularly scheduled meetings can accomplish 

several important things:

 The BLM can identify and briefly explain actions planned for the coming year, as 

well as any additional land use proposals that are foreseeable on public lands or 

lands that may be affected by BLM decisions.

 The tribe can identify proposed actions or geographical areas that it is concerned 

about and about which it would like to be consulted at a later date. The tribe 
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might also identify actions or geographical areas for which it feels no need to be 

consulted.

 For some proposed actions, the BLM and the tribe can agree to follow expedited 

or tailored consultation procedures to resolve scheduling conflicts, meet project 

timeframes, or accommodate special needs of the people involved.

 The tribe can use the meeting as an opportunity to identify persons it recognizes 

as traditional leaders or religious practitioners. The tribe can also identify specific 

proposed actions, kinds of actions, or geographical areas about which these 

individuals should be consulted.

Information coming out of these meetings may form the basis of consultation agreements 

or MOUs that can define the manner in which tribes prefer that future consultation take 

place, areas or actions the tribes wish to discuss in the future, or specific natural or

heritage resources tribes wish to be consulted about whenever proposed actions might

affect them. Execution of such tribal agreements is encouraged in Section 6.c of the 

national PA. Regular periodic meetings can be an effective means for maintaining a 

constructive ongoing intergovernmental relationship.

3. Make Consultation Meeting Locations Convenient. For the benefit of both parties,

managers are encouraged to strive for the most efficient and effective method of 

consultation. Whenever possible, avoid scheduling meetings on matters potentially 

affecting tribes in places where it would be difficult for tribal members to attend. It is 

hard for tribal elders, in particular, to travel long distances to attend meetings, and these 

are the people who are usually chosen by the tribe to be spokespersons on issues of 

traditional land use or religious concern. If a meeting can be scheduled on or near a 

reservation, tribal members are more likely to attend.

On occasion, onsite visits or other face-to-face meetings may be requested by the tribes 

or their designated representatives. A reasonable effort should be made to accommodate 

such requests in as timely a manner as possible.

4. Meeting Etiquette. At face-to-face meetings between the BLM and Indian tribes, BLM 

managers and staff should follow these commonsense guidelines:

 Timing is critical. Be cognizant of the tribal calendar and major events. Plan 

meetings accordingly.

 Prepare and distribute meeting information for tribes in advance of the meeting.

 The BLM should work with tribes to prepare agendas that address both tribal and 

agency concerns.

 Ask tribal leadership if they wish to have appropriate tribal staff open and close 

the meeting. Be respectful of the fact that meetings will often open and close with 

a prayer.
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 Be patient, especially if the meeting with a tribal council includes additional 

agenda items or follows no fixed schedule.

 If the BLM is hosting, allow a time at the beginning of the meeting to introduce 

participants and their roles. Provide a brief overview of the venue to allow for 

participation comfort.

 Gifts and food may be important parts of cultural exchanges. Be aware of and 

sensitive to local customs. Respectfully accept any offerings and provide food to 

the extent allowable by BLM ethics guidance.

 Respect local cultural practices. Details and arrangements for the government-togovernment meetings should be carefully managed in advance by the staff and 

managers to ensure that managers are informed of local protocols.

 Be clear about what the BLM is doing and why, including which laws and 

regulations govern our actions. Set realistic expectations for what the BLM can, 

and cannot, do.

 Be respectful, professional, and polite by (1) using titles, not first names, 

especially in formal meetings; (2) turning off cell phones and never using smart 

phones during meetings even if tribal members may be doing so; (3) never 

interrupting a tribal speaker; and (4) framing questions tactfully in a manner that 

does not question an elder’s knowledge but that seeks clarification or more 

information.

 Listen actively. When information is presented through anecdotes or stories, 

make sure to understand the point being made. Ask questions.

 Request permission to take photographs.

 Silence is okay and quiet moments for contemplation are often acceptable if not 

expected.

 Identify that notes are being taken and by what method. Provide an opportunity 

for meeting participants to review the notes shortly afterward to make sure their 

views are accurately represented.

H. Use of Internet to Facilitate Consultation

Carrying out adequate tribal consultation can be challenging for both individual BLM field 

offices and tribal offices, especially given restricted travel ceilings and the fact that tribal 

headquarters may be located hundreds of miles away. Staff at the BLM field offices should 

discuss with tribes the feasibility and acceptability of utilizing conferencing programs available 

over the Internet to facilitate consultation. Where tribes and the BLM operate compatible 

teleconferencing capabilities, telephone conferences, videoconferencing, webinars, and other 

software applications can greatly enhance the limited number of face-to-face meetings that can 

be arranged between top tribal leaders and BLM managers. Such real-time virtual 

communication can be utilized in appropriate circumstances to enhance staff-to-staff 
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communication; to enable consultation on short notice; or to efficiently transmit status reports, 

although it cannot take precedence over direct face-to-face meetings when such meetings are 

feasible.

I. Lack of Tribal Response

Applicable government-to-government consultation authorities do not require participation by 

Indian tribes or other specific consultation parties outside the relevant Federal agency. Nor do 

those authorities establish specific timetables for when tribes must engage in consultation.

As the Secretary’s policy on Indian tribal consultation makes clear, even if the BLM has made an 

attempt to initiate consultation and has not received a response, the BLM must still make 

additional reasonable efforts periodically throughout the planning process to repeat invitations to 

consult.

If a tribe does not respond within a reasonable period of time, such as 60 days following a BLM 

requests for input, the responsible BLM manager or his/her designee should follow up with 

emails and/or personal telephone calls to tribal officials. Tribes should be informed that if they 

wish to provide feedback or input that they should contact the responsible BLM manager. This 

must be done at least for those NEPA actions where there is a public scoping process as part of 

government-to-government consultation. Following up letters with emails and/or telephone calls 

can assure that tribal officials understand the issue and that the BLM wants to consult in good 

faith. Varied forms of communication are particularly important where the BLM is trying to 

engage with a party that the BLM believes may have an interest in, or information about, the 

effects of an undertaking.

When a tribe is unresponsive to both the letter(s) and phone call(s), the BLM needs to carefully 

document its efforts to engage with the tribe. The BLM should note when, how frequently, and 

by what means it reached out to particular consulting parties. While there is no perfect solution 

to non-responsiveness, BLM offices must use a variety of means in an attempt to consult. Utilize 

written correspondence, emails, telephone calls, faxes, and face-to-face discussions if possible to 

demonstrate a wide-ranging and sustained effort to communicate.

There may be a variety of reasons why a tribe was unable to respond beyond those described 

below. The lack of response might be due to—

 Sensitivity of the issues involved,

 Reluctance to divulge specific information until later in the process when it might 

become more certain that areas of concern really will be adversely affected,

 Mislaying or sidelining of BLM correspondence, or

 Delegating response to a tribal staff member who was out of the office.

It is important to know the schedules for tribal council meetings for the tribes with which BLM 
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offices consult. Some councils meet every month. Others only convene every few months. The 

BLM’s comment periods may not coincide with tribal council meetings where responses are 

often determined by consensus.

J. Approaches to Contentious Meetings

Some consultation meetings may be confrontational because of widespread opposition to a 

particular proposed project or because of political reasons. In these situations, the BLM official

may wish to consider the following strategies:

 Provide detailed draft agendas in advance for input and finalize the topics and issues to 

discuss that meet both BLM and tribal concerns. The agenda should explain how topics 

relate to the analysis of the undertaking’s impacts and fit into the process.

 In situations where meeting confrontations are likely to be particularly acute or where the 

undertaking is complex, consider using facilitation through the Department’s Office of 

Collaborative Action and Dispute Resolution.

 Hire a court reporter to make a transcript. The presence of a recorder may dampen 

confrontation since the attendees know their statements are being recorded verbatim. 

Transcripts may provide helpful documentation to inform a decision. They may be called 

upon to establish key facts if there is subsequent litigation.

K. How Much Consultation to Do—Meeting the Good Faith Standard

There is no simple measure of sufficiency of Indian tribal consultation efforts. The amount of 

consultation generally can be considered sufficient when the BLM has enough information to 

make an informed decision and, if that information is not provided by tribes, prepare a 

documented record of good faith effort before a decision was made.

Unless specified otherwise in a consultation agreement with the tribe, field managers should 

evaluate the amount of consultation necessary based on—

 Completeness and appropriateness of the list of Indian tribes and individuals consulted;

 Legal requirements posed by treaties (if any),

 Nature of the issues raised,

 A clear understanding of what the BLM needs to know from the tribes to make a robust 

decision,

 Potential harm or disruption a proposed action could cause,

 Alternatives that would reduce or eliminate potential harm or disruption,

 Intensity of concern expressed,

 Potential to resolve issues through further discussions, and
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 Need for further consultation.

All such judgments should be well documented to ensure a complete record of the authorized 

officer’s good faith efforts to identify, contact, and respond to Indian tribal concerns before 

reaching a decision. Sufficient information should be developed to demonstrate how decisions 

were reached and when they could potentially affect Indian tribal values associated with BLMadministered lands and resources.

This basic standard for good faith effort is the same for both land use planning and land use 

actions. As was the case at the land use planning stage, a BLM field manager can be confident 

that he or she has made a good faith effort to meet the requirements for tribal consultation on 

land use actions if, after sending out the initial letter to the governing authority of each tribe, the 

BLM manager—

 Follows up the letter with telephone call(s). If the tribe chooses not to participate or 

provide comments, the BLM can consider its efforts sufficient and proceed with the 

decisionmaking;

 Meets with tribal leaders or other tribal officials in person if tribes request it; and

 Informs tribal officials that the BLM intends to directly contact individuals such as 

traditional cultural leaders or religious practitioners the BLM already knows who might 

have concerns about the proposed action before actually doing so.

Several White House documents guide agencies in meeting this good faith standard. Section 

2(a) of Executive Order 13007, Indian Sacred Sites, charges land managing agencies to 

“promptly implement procedures . . . to ensure reasonable notice is provided of proposed actions 

or land management policies that may restrict future access to or ceremonial use of, or adversely 

affect the physical integrity of, sacred sites. In all actions pursuant to this section, agencies shall 

comply with the Executive Memorandum of April 29, 1994, ‘Government-to-Government 

Relations with Native American Tribal Governments.’” The referenced 1994 memorandum 

states: “Each executive department and agency shall consult, to the greatest extent practicable 

and to the extent permitted by law, with tribal governments prior to taking actions that affect 

federally recognized tribal governments. All such consultations are to be open and candid so that 

all interested parties may evaluate for themselves the potential impact of relevant proposals.”

An example of how the courts define “reasonable and good faith effort” when consulting with 

tribes under NHPA emerged from the Tenth Circuit Court of Appeals’ decision in the case of 

Pueblo of Sandia v. United States. In that case, the U.S. Forest Service wrote letters to Sandia 

Pueblo requesting detailed information about traditional cultural properties (TCP) within an area 

proposed for development. The tribe responded with only general information, stating that 

A good way to gauge whether consultation efforts have been sufficient is to consider the 

degree to which an objective review of the decision record would find a good faith effort to 

identify, notify, involve, and respond to all Indian tribes potentially affected by a proposed 

decision. 
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spiritual sites were located in the area but did not provide detailed locations or information about 

them. The Forest Service took this as insufficient information to confirm the presence of 

National Register-eligible TCPs and it reached the determination that no historic properties 

would be affected by the proposed action.

The tribe sued and the court opined that the information the tribe provided to the Forest Service, 

even though of a general nature, should have been enough to alert the agency that TCPs might be 

affected. The court stated that the agency should have followed up on the tribe’s assertions. The 

take away from this case is that writing letters to tribes asking them to identify places of 

traditional use, access, or cultural or religious importance may be a good first step, but it is not 

enough if information provided by a tribe indicates the presence of such places. A reasonable 

and good faith effort requires that the BLM follow up on this type of information provided and 

take additional steps to determine the nature of these places of tribal concern, determine whether 

or not those places qualify for nomination to the NRHP, and determine whether they would be 

affected by the proposed action.

See also MS-1780, Tribal Relations, Appendix 2, Judging the Adequacy of Tribal Consultation.

L. Documentation of Notification, Coordination, and Consultation

The BLM must document consultation efforts carefully through adoption of a consultation data 

tracking system. Copies of all correspondence, emails, telephone logs, meeting notes, and other 

records must be maintained in a complete administrative record. 

Evidence of notification, coordination, and consultation (or failure despite diligent efforts) is to 

be included in the official file and provided to the BLM officer in support of a proposed decision. 

The names of preparers should appear on all notification and consultation materials, which 

should be signed and dated. The consultation record must show that the decision maker made a 

good faith effort to obtain and weigh tribal concerns in decisionmaking. If a decision does not 

conform to the tribe’s requests, the consultation record must explain the manager’s basis for 

reaching a different outcome.

BLM officers should accustom themselves to looking for evidence of notification or consultation 

(whether successful or not as a result of a good faith effort) in the case file before making a 

decision. If notification or consultation was not done, the staff person preparing the material for 

the BLM officer should include a note and justification for why it was not carried out. 

All attempts to establish telephone communication, and a record of all conversations conducted 

by telephone, should be documented by a signed and dated note to the files to be included in the 

permanent record. Copies of relevant emails are to be included as well. Field offices should 

check with records administrators to determine if certain texts or social media might also need to 

be preserved as part of the administrative record.

All direct face-to-face meetings must be documented by meeting notes describing dates, 

attendees, location, subjects covered, and decisions reached. The BLM-prepared meeting notes 
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should be vetted with those who participated before final approval. Such meeting notes should 

be sent to tribal leaders as well as any tribal staff who attended the meeting. Correspondence 

transmitting the meeting notes should ask tribal officials to check to make sure that positions 

expressed by tribal staff at the meeting do in fact reflect the tribe’s actual position on the issues 

discussed. Final copies of meeting notes may be provided to tribes who were invited but did not 

attend the meeting if the BLM field office anticipates additional opportunities for consultation 

with those tribes later in the process.

M. Conclusion of Consultation

In all cases, the tribes that have participated in consultation should be notified of the BLM’s 

decision. This correspondence should be sent via certified mail or delivery service and a copy 

included in the permanent decision record. This notification should specifically include a 

discussion of the BLM’s basis for its decision, how the final decision was or was not able to 

accommodate tribal concerns raised during the consultation process, and the avenues available 

for protest or appeal of the decision.

Following the BLM decision or authorization, opportunities are likely available for ongoing 

engagement with tribes regarding the implementation of the authorization, monitoring of its 

effects, and reclamation following the life of the project. Tribes should be made aware of 

opportunities to stay engaged with the BLM regarding the enforcement of any design guidelines 

or mitigation requirements to protect resources of concern to tribes.
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CHAPTER IV. GUIDANCE FOR TRIBAL CONSULTATION IN PLANNING AND 

DECISION SUPPORT

A. General Authorities 

This chapter gives great weight to the general planning procedures (FLPMA) and related

decision support considerations (NEPA) since these processes constitute overarching obligations 

that affect ALL programs. BLM also must comply with Section 106 of the NHPA for all 

undertakings, which would apply to any BLM program. The procedural requirements of Section 

106 of the NHPA, including effect determinations and resolution of adverse effects, apply only 

to historic properties considered to be listed in or eligible for the National Register of Historic 

Places, as defined in the statute and regulations. It is for this reason that NHPA is addressed in 

more detail within the Cultural Heritage Program Chapter X.

BLM’s responsibilities for compliance with Section 106 of the NHPA, including tribal 

consultation, are triggered by a proposed undertaking. Tribal consultation as part of the Section 

106 process is driven by and focused on a specific undertaking. While BLM must conduct tribal 

consultation as part of the Section 106 process, this consultation is focused on historic properties 

only and does not satisfy BLM’s obligations to consult with tribes on other issues potentially 

raised by a proposed action or program. As discussed in this handbook, the BLM conducts a 

great deal of tribal consultation outside of the Section 106 context, including periodic 

consultation meetings with tribes and communication throughout the BLM.

The FLPMA, the NEPA, Executive Order 12898, Federal Actions to Address Environmental 

Justice in Minority Population and Low Income Populations, and Executive Order 13175, 

Consultation and Coordination with Indian Tribal Governments, apply broadly to the 

management of public lands and provide opportunities for tribes to participate in decisionmaking

across all BLM program areas and all classifications of public lands. In addition to the general 

authorities discussed in this chapter, some individual State or region-specific acts may provide 

additional mandates and requirements for the management of lands administered by the BLM, 

such as timberlands in western Oregon subject to the 1937 Oregon and California Revested and 

Sustained Yield Management Act (O&C Act; 43 U.S.C. 1181(f)). Unless otherwise specified, 

the requirements for consulting with tribes and fulfilling trust responsibilities remain consistent 

with these general authorities.

The FLPMA guides all BLM programs, NEPA pertains to the entire breadth of the human 

environment, and Executive Orders 12898 and 13175 involve all forms of guidance and policy 

making. The planning and environmental review systems supporting FLPMA and NEPA 

establish the procedural and scheduling framework for tribal consultation. Traditional religious 

activities including uses of sacred locations on public lands also should be considered in the 

management and planning processes of FLPMA and NEPA guided by the AIRFA and Executive 

Order 13007, Indian Sacred Sites. Executive Order 12898 requires that each Federal agency 

consider the impacts of its programs on minority and low-income populations, including tribal 

communities and reservations.
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The BLM’s land use planning process under FLPMA and the NEPA analysis that accompanies it 

provides an early opportunity for tribes to help inform BLM decisions with the potential to affect 

their interests through both formal consultation and serving as cooperating agencies. For 

example, tribal concerns with regard to places of traditional use or environmental justice issues 

are most effectively identified and considered over the extended period of time afforded by the 

land use planning process and associated environmental review. Tribal preservation concerns 

should be identified in spatial and programmatic terms, to address in general the locales and the 

types of land use activities that would and would not be of further tribal concern as well as 

specific locations of cultural sensitivity the tribes wish to identify. Land use planning provides 

the BLM with the opportunity to learn about potential conflicts so they may be avoided or their 

severity reduced. Criteria and procedures for consulting with tribes about potential future 

individual land use actions and their role as a possible cooperating agency may be discussed and 

negotiated at this time. Similarly, NEPA’s project planning process involves many of the same 

opportunities for identifying tribal issues through government-to-government consultation 

regarding proposed land development projects.

Given the breadth of tribal interests in many regions, it is advantageous for the BLM and tribes 

to consult and identify priorities to help mitigate the potentially high workloads for all those 

concerned. Through this general consultation, the manager can determine what actions are likely 

to affect tribal interests. Such determinations can be the subject of communication protocols in 

MOUs to help guide all of those involved in future discussions.

1. Federal Land Policy and Management Act. The BLM is obligated in section 202(c)(9) 

of the FLPMA to coordinate planning on public lands with Indian tribes and to ensure 

consistency between BLM’s and the tribes’ LUPs to the extent consistent with federal 

laws and the purposes of FLPMA. LUPs include RMPs and management framework 

plans. New RMPs, RMP plan revisions, and RMP amendments are planning efforts. 

Implementation-level plans are subsequent to the land use planning process.

Federal Land Policy and Management Act, Title II

 Directs the preparation and continuing maintenance of an inventory of the public 

lands, their resources, and other values, open to participation of the public and other 

governments, including tribes.

 Directs that LUPs be developed, maintained, and revised (as needed), open to 

participation of the public and other governments and in coordination with the policies 

of approved tribal land resource management programs.

 Provides through planning a means to anticipate conflicts between proposed land 

uses and tribal issues and concerns, and strive to reduce the number and severity of 

use conflicts at the implementation stage.

 Provides for continuing coordination with Indian tribes regarding the consistency of 

LUPs, guidelines, and rules and regulations on public land and tribal land.

Figure IV-1 Provisions of Title II of the Federal Land Policy and Management 

Act.
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Going into consultation with knowledge about a tribe’s historic relationship with the land 

and resources should enable managers to direct their questions in a sensitive and effective 

way. After initiating contact, the BLM frequently consults with representatives 

designated by the tribe for that purpose. These representatives are usually tribal staff, 

often the tribe’s own environmental and planning personnel.

The planning regulations require the BLM to initiate government-to-government 

consultation with federally recognized Indian tribes.

Consultation for FLPMA Purposes

BLM consults with— Purpose of consultation is—

Elected tribal officials, or tribal 

representative(s) whom the tribal 

government has designated for 

this purpose

 To solicit input identifying public land 

places, resources, uses, and values that 

are important to the tribe and/or tribal 

members and should be considered in 

LUPs

 To coordinate BLM and tribal land use 

policies and programs, and to seek 

consistency between LUPs, guidelines, and 

rules and regulations affecting public land 

and tribal land 

Figure IV-2 Tribal consultation for purposes of Title II of the Federal Land Policy 

and Management Act.

Over the course of consultation at the land use planning stage, BLM should emphasize to 

tribes that with adequate information (strengthened by tribal input), the BLM is better 

able to consider decisions that may be beneficial to tribes. Administrative and land use 

allocation actions the BLM can take to protect and accommodate tribal use of culturally

important places following consultation during land use planning include the following:

 Protecting sacred places from incompatible uses. Some places are so important to 

tribes that many land uses at or even near those places may be perceived by 

religious practitioners as defiling their religious character. If the BLM learns 

about these places during land use planning before allocation decisions are made, 

the agency may be better able to protect those locations.

 Avoiding authorization of conflicting activities at sacred places. Many rituals and 

ceremonies conducted by religious practitioners occur at certain times of the year 

and for relatively brief periods of time. If the BLM knows where sacred and 

ceremonial places are located, and when they are likely to be used, the agency can 

make decisions in LUPs to avoid conflicting activities at those locations at those 
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critical times while always guarding against disclosures of any culturally sensitive 

tribal information without tribal consent.

 Making Off-Highway Vehicle (OHV) designation decisions that can 

accommodate tribal use and concerns with resource protection. The BLM often 

conceives OHV restrictions as protecting areas from potential damage. However, 

closing certain areas to OHV use through land use planning allocation decisions 

and route designations can inadvertently restrict or prohibit access to sacred 

places by tribal elders and religious practitioners who are unable to walk long 

distances. Therefore, tribes must be encouraged to participate in land use 

planning at the RMP level to identify their preferences for open/limited/closed 

OHV area allocations for motorized travel. Tribes also must be encouraged to 

participate and be consulted during the travel and transportation management

implementation planning when route designations are determined. This will

ensure that they will be able to continue visiting places important to them on the 

public lands.

 Facilitating traditional gathering of culturally important plants. Administrative 

actions can be identified in LUPs that will enable the gathering of medicinal 

plants, basketry materials, and other resources used in tribal cultures. For 

example, the BLM may specify in plans that collection by Native Americans of 

noncommercial quantities of herbs, medicines, and other items necessary for 

traditional cultural or religious purposes would be permitted through a simple 

letter of authorization issued annually, without charge.

 Making special designations to protect natural or mineral resources, historic 

properties, sacred sites, and traditional use areas. Areas of Critical Environmental 

Concern (ACECs) can be designated in whole or in part within RMPs to protect 

land and resources of traditional cultural or religious importance to tribes. 

Protective stipulations attached to the management of these areas can help 

accommodate use and access by Indian people and limit potentially conflicting 

land uses. (See, for example, the Biscuitroot Cultural ACEC in eastern Oregon, 

designated to provide priority use for Northern Great Basin and Plateau tribes to 

continue harvesting biscuitroots and bitterroots in accordance with their cultural 

traditions.)

 Developing consultation agreements with tribes. These communication protocols 

help structure and facilitate consultation on planning generally and on subsequent 

specific land use actions. They establish contacts for both government-togovernment consultation and less formal staff communication. The agreement 

can identify tribal staff contacts and traditional or religious practitioners. Tribes 

can let the agency know in advance which types of actions they wish to be 

consulted about and/or areas requiring consultation whenever actions are planned 

there. Such agreements can be helpful to establish culturally sensitive ways for 

tribes to inform the BLM of their needs and concerns about places important to 

them.
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 Developing comprehensive NAGPRA agreements. Land use planning offers a 

good opportunity to develop NAGPRA agreements with Indian tribes that have 

claimed, or are likely to claim, Native American human remains or other cultural 

items subject to NAGPRA within the planning area. Though not mandatory, such 

agreements are strongly encouraged. Per 43 CFR 10.5(f), these agreements 

should address land management activities that could result in the intentional 

excavation or inadvertent discovery of Native American human remains, funerary 

objects, sacred objects, or objects of cultural patrimony, and describe the 

procedures that will be followed to notify and consult with lineal descendants and 

Indian tribes and for determining custody, treatment, and disposition. These 

agreements need to comply with the requirements of 43 CFR 10.5 and 10.6, and 

may take some effort to establish in the short term. However, comprehensive 

agreements are important planning tools. They provide some predictability for 

process and reduce the likelihood that land use activities will be delayed if BLM 

and Indian tribes come to agreement on procedures in advance.

To meet the BLM’s responsibilities under FLPMA, as well as responsibilities under 

many other authorities discussed in this chapter, the BLM line officer needs to inform 

tribal officials of opportunities to participate in the development of BLM plans, including 

their potential cooperating agency role. While tribes may be invited to become 

cooperating agencies for planning purposes, the BLM does not expect or require tribes to 

act in this capacity. It is entirely an individual tribe's choice to become a cooperating 

agency when they feel that it is in their best interest to do so. Establishment of 

cooperating agency status with a particular tribe does not adversely affect that tribe's 

sovereignty; nor does it relieve the BLM of its ongoing responsibilities to consult fully 

regarding proposed decisions or actions with that tribe.

The BLM must request tribal reviews and ask which other tribal members should be 

contacted. The BLM offices need to make a good faith effort to pursue those contacts 

and carefully consider all input received. The BLM can consolidate the consultation 

effort using the following processes:

 Review what is already known about the interests of the tribe pertaining to the 

planning area, including ethnographic data or other information provided by the 

tribe; 

 Initiate communication with potentially interested tribes on a government-togovernment basis. The BLM accomplishes this by sending a letter, addressed 

personally to the chief executive of each tribe, providing a description and map of 

the planning effort, and inviting the tribe to participate in scoping. The letter 

should request comments on—

o Any issues or concerns the tribe may have regarding the BLM’s 

management of the planning area,
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o Any sacred sites or places of traditional religious or cultural importance to 

the tribe within the planning area, or needs for access to such places, that 

the BLM should consider in its planning effort including nomination of 

potential ACECs through a submittal process provided in the BLM ACEC 

Manual, and

o Any traditional religious or cultural practitioners the BLM should contact. 

If the BLM is already aware of such individuals, the agency letter should 

state that it will be contacting those persons as well.

 Invite an eligible federally recognized tribe to serve as a cooperating agency as 

provided in BLM’s A Desk Guide to Cooperating Agency Relationships and 

Coordination with Intergovernmental Partners (2012). Tribal officials may use 

that role as a convenient means to communicate their views or contribute their 

expertise, supplementing the government-to-government consultation process. A 

tribe’s eligibility is based on their local knowledge of culturally distinctive uses 

and an understanding of the land and resources involved, which often may be 

wide-ranging.

Tribes are often reluctant to reveal information about places of religious or cultural 

importance until they perceive a definite threat to those places. For that reason, tribes 

may not want to tell the BLM about specific sacred sites and other traditional places at 

the land use planning level when the agency does not yet know about specific impacts to 

particular geographical locations. In such cases, BLM managers should coordinate with 

BLM tribal liaisons or cultural heritage specialists who may be able to share ethnographic 

information and tribal histories with the planning team.

When engaged in consultation with tribes during land use planning, BLM offices may 

discuss safeguards the BLM is willing to adopt to protect sensitive information from 

disclosure. For example, BLM offices may allow tribes to keep primary written 

documentation at their offices while the BLM maintains references to them only as 

working files. Arrangements in which data utilized by the BLM during the 

decisionmaking process are housed at tribal offices must be documented in an MOU.

The BLM should send copies of the draft and proposed RMPs and associated 

environmental analysis to tribal officials for review and comment. If the tribe has chosen 

to participate as a cooperating agency, the letter should be part of the review and 

comment during the administrative (pre-public) review period provided for cooperating 

agencies. If not, the letter would be part of the draft RMP public review period following 

publication of the NEPA notification in the Federal Register. In addition, tribes will be 

allowed to comment during the 60-day governor’s consistency review and 30-day appeal

period in which the Governor may appeal to the Director if not satisfied with the State 

Director's decisions regarding whether or not to accept the recommendations of the 

Governor. While there is usually not a formal comment period for proposed RMPs, 

comments from tribes may be accepted during this time frame. When making decisions 
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on the plan, managers should consider any comments tribal officials provided and must

notify the tribe of final plan decisions, including an explanation for why the plan was or 

was not able to accommodate particular tribal concerns.

The BLM should carefully document all consultation efforts by including copies of 

correspondence, a record of telephone conversations, and copies of relevant emails in the 

administrative record for the planning effort. (See appendix 3 for example of a tribal 

consultation spreadsheet).

2. National Environmental Policy Act. The purposes of tribal consultation under the 

NEPA, in general, are to identify potential conflicts between proposed actions needing 

BLM approval and tribal interests and to seek alternatives that would avoid, reduce, or 

resolve them through the project planning process. The NEPA charges Federal agencies 

to consider the effects of any action that could significantly affect the quality of the 

human environment. Section 101(b)(4) of NEPA further notes that it is the 

“responsibility of the Federal Government to use all practicable means . . . to the end that 

the Nation may . . . preserve important historic, cultural, and natural aspects of our 

national heritage, and maintain, wherever possible, an environment which supports 

diversity, and variety of individual choice.” Clearly, the BLM cannot fulfill this 

obligation without learning about and considering American Indian and Alaska Native 

uses of the public lands. These are important parts of the human environment as well as 

the historic, cultural, and natural aspects of our national heritage. Information from 

federally recognized tribes can be gained through both consultation and the tribe’s 

cooperating agency involvement during the project planning analysis.

National Environmental Policy Act Section 102(2)(c)

Directs the responsible Federal official considering a proposed action that could 

significantly affect the quality of the human environment to prepare a detailed 

statement on—

 The environmental impact of the proposed action,

 Any adverse environmental effects which cannot be avoided should the proposal 

be implemented,

 Alternatives to the proposed action,

 The relationship between local short-term uses of the human environment and 

the maintenance and enhancement of long-term productivity, and

 Any irreversible and irretrievable commitments of resources which would be 

involved in the proposed action should it be implemented.

Figure IV-3 Provisions of Section 102 of the National Environmental Policy Act.

The Council on Environmental Quality (CEQ) regulations require that agencies consult 

early with appropriate Indian tribes and invite any affected tribes to participate in 

scoping. The CEQ regulations also recognize tribal eligibility to serve as cooperating 
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agencies in the project planning effort when the effects of a proposed action are on 

reservation lands. Tribes must be consulted whenever other governmental entities or the 

public are formally involved in BLM’s environmental review. In practice, this means 

that the BLM consults with tribes regarding EISs, environmental assessments (EA) for 

which there will be a public review and comment period, and other NEPA documentation 

that entails public involvement or initial discussion with local or State governments. 

While tribal input for implementation level plans will not require as extensive a review 

period as compared to RMPs, a minimum of 30 days should be provided for tribal 

feedback for EAs, especially those that involve sites, historic properties, resources, or 

landscapes important to Native Americans. Additionally, the departmental manual (DM)

requires consultation with Indian tribes when proposed actions might affect an Indian 

reservation (516 DM 4.16B).

Consultation for NEPA Purposes

BLM consults with— Purpose of consultation is—

Elected tribal officials, or tribal 

representative(s) whom the tribal 

government has designated for this 

purpose 

 To identify a proposed action’s potential to 

conflict with tribal members’ uses of the 

environment for cultural, religious, and 

economic purposes

 To seek alternatives that would resolve the 

potential conflicts 

Figure IV-4 Tribal consultation for purposes of Section 102 of the National 

Environmental Policy Act.

How does the BLM comply with NEPA’s tribal consultation obligations for project 

planning? Tribal consultation must take place at key points in the NEPA process. These 

are some key points—

 Before initial public notice, including when pre-application meetings occur,

 At the formation of BLM’s proposed action,

 When alternative actions are formulated,

 When assessment of impacts is projected,

 At the publication of the analysis documents,

 At the Final EIS, when relevant, and

 Before the final decision is rendered.

Tribal consultation, including compliance with NHPA Section 106, may be appropriate 

even if BLM’s proposed action is covered by an applicable categorical exclusion (CX) 

that relieves that agency of having to prepare an EIS or EA. In these circumstances, the 
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BLM should take care to consider whether or not the proposed action covered by the CX 

involves “extraordinary circumstances” relating to impacts to Indian tribal land uses, 

access, and cultural or religious values, as articulated in the Department of the Interior’s 

NEPA regulations at 43 CFR 46.215. If, for any reason, a NEPA document will not be 

prepared, an appropriate non-NEPA document should be used to substantiate 

identification and consideration of Indian tribal concerns and places of importance to 

them. Such non-NEPA documentation may consist of BLM-tribal consultation logs, 

inventory reports, data recovery reports, etc. These documents should be maintained and 

housed with the administrative record for the project.

The NEPA document must fully disclose tribal issues and provide a summary of tribal 

consultation in order to demonstrate that tribal concerns have been heard and their 

positions considered. As is fitting for the special Federal-tribal relationship, tribal issues 

and recommendations should be fully discussed and addressed in relevant sections of the 

text within the NEPA document, rather than as an appendix to the discussion of cultural, 

and archaeological resources. Relevant sections where these discussions could occur:

 Scoping and Issues. Include a specific discussion of scoping issues raised by 

tribes.

 Affected Environment. Include a section that introduces those tribes with 

interests in the project and identifies resources or issues of significance to them.

 Alternatives. Discuss how tribal issues shaped the alternatives considered.

 Environmental Impacts. Address impacts, including cumulative effects, to tribal 

concerns and refer to more detailed discussions in other sections, such as impacts 

to water, biological, or botanical resources of tribal significance.

A number of strategies should be discussed with tribes during consultation associated 

with the NEPA process to protect resources and access issues of importance to them. 

Mitigation measures analyzed in the NEPA document may include, but are not limited to, 

the following:

 Attaching measures to use authorizations to protect resources of importance to 

tribes and accommodate their use. For example, in certain situations ceremonial 

places can be screened from view by planting vegetation or installing temporary 

visual barriers. Intrusive developments can be hidden or painted to blend with the 

environment.

 Moving competing uses. Conflicting activities and uses can be shifted to other 

areas or scheduled for other times. 

 Removing incompatible facilities. Disturbed ground surfaces and vegetation can 

be restored. Vehicle use can be restricted. Livestock can be managed. 

Vandalism can be reduced by law enforcement patrols and site steward 

monitoring. Tribes can probably also suggest additional measures.
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 Including tribes in project planning and utilizing their input to design 

specifications for access, parking, trails, interpretive signs, and other visitor 

developments. Tribal consultation in several States has resulted in tribal input 

into the text and artwork on interpretive signs at rock art sites. Such consultation 

improves relations with tribes by partnering on the interpretation of a site 

reflecting their cultural traditions and enhances the interpretive experience of all 

visitors.

 Consulting with tribal governments to collaboratively identify means of reducing 

or avoiding impacts. This approach can be effective if a proposed action poses a 

disproportionate impact, economically or environmentally, on a tribal community 

or reservation.

 Issuing special use permits to address conflicts. Permits are generally not 

necessary when Indians wish to visit sacred sites because most Indian religious 

and ceremonial practices are solitary or involve only a few people for a short 

period of time. However in specially designated areas, such as where sensitive 

species exist, or where there is competition for special uses, a tribe may be issued 

a special use permit to authorize an activity if it is necessary to limit the duration 

of the event and the number of participants, and restrict simultaneous use by 

others.

 Negotiating MOU to facilitate access and use. If consultation with a tribe about a 

proposed activity reveals the potential for recurring conflicts with traditional 

cultural or religious uses, an MOU with the tribe can address concerns about 

access and use during certain times.

 Developing management of land boundary plans to compile into one project 

planning document all the various geographical areas of interest and a risk 

assessment of potential conflict from inadequate or misrepresented knowledge, 

location, or markings. If a proposed action may involve areas of high risk, from 

either on-the-ground location uncertainty or in the authoritative geographical 

record, a management of land boundary plan should be prepared by cadastral 

staff. Such plans identify areas of high risk due to uncertainty in the land tenure 

records. They provide an opportunity for the BLM and the affiliated tribe(s) to 

work from shared knowledge and to agree on mitigation measures. The BLM 

should attempt to develop a plan that reflects the tribe’s information and 

knowledge of such locations. A management of land boundary plan is 

particularly useful at the pre-undertaking stage of project planning, providing a 

common understanding of the whole landscape.

 Specifying the appropriate treatment of accidental finds resulting from project 

activities or natural erosion processes such as archaeological sites or human 

remains. This anticipation can include developing a NAGPRA plan of action to 

specify the procedures for notifying and consulting with lineal descendants and 

Indian tribes regarding intentional excavation or inadvertent discovery of Native 
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American human remains and/or cultural items, and fieldwork and laboratory 

analysis that will be performed, consistent with ARPA. These plans are addressed 

in 43 CFR 10.5(3), and at a minimum address the types of objects to be 

considered as cultural items; information used to determine custody, treatment, 

care, and handling; recording; analysis; traditional treatments; nature of reports; 

and planned disposition. Such plans provide an opportunity for the BLM and the 

affiliated tribe(s) to develop procedures for the excavation, treatment, and 

disposition of the remains. The Federal agency official must prepare, approve, 

and sign the written plan of action. A copy must be provided to the lineal 

descendants and Indian tribes involved, who may sign, but their signatures are not 

required. See Chapter X, NAGPRA Consultation for Land Use Authorization, 

section B.3.f for more guidance and the law, regulations, and relevant BLM 

policy in the 8100 manual series for the requisite authority and procedural 

requirements for addressing agency responsibilities for compliance with 

NAGPRA.

Where tribal concerns are appropriately addressed through the NHPA Section 106 

process, as in the consideration of historic properties with traditional and religious 

significance, the NEPA document should reference the outcome of the Section 106 

process.

3. Executive Order 13175. Federal agencies are directed to develop an “accountable 

process” for ensuring meaningful and timely input by officials from federally recognized 

tribes in the development of legislation and regulatory policies that have tribal 

implications. The Executive order applies to regulations, legislative comments or 

proposed legislation, and other policies, statements, or actions that have substantial direct 

effects on one or more tribes, on the relationship between the Federal Government and 

tribes, or on the distribution of power and responsibilities between the Federal 

Government and tribes.

The Executive order was issued to strengthen government-to-government relationships 

and to reduce the imposition of unfunded mandates upon Indian tribes. Agencies may 

not promulgate any regulations that have tribal implications unless funds necessary to pay 

the direct costs incurred by Indian tribal governments to comply are provided. The 

agency must consult with tribal officials early in the process of developing the 

regulations prior to their promulgation. In a preamble to any final regulations, agencies 

must provide the Director of the Office of Management and Budget with a tribal 

summary impact statement consisting of a description of the agency’s consultations with 

tribal officials, a summary of tribal concerns, the agency’s position supporting the need 

for the regulation, and a statement of the extent to which the concerns of tribal officials 

have been met. 

4. Executive Order 12898. Executive Order 12898, Federal Actions to Address 

Environmental Justice and Minority Populations and Low-Income Populations (February 
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11, 1994), directs Federal agencies to identify and address, “as appropriate, 

disproportionately high and adverse human health or environmental effects of its 

programs, policies, and activities on minority populations and low-income populations”

including federally recognized tribes as expressed in section 6-606. H-1601-1, Land Use 

Planning Handbook, Appendix D, Social Science Considerations in Land Use Planning 

Decisions, establishes environmental justice as “a mandatory critical element for 

consideration in all land use planning and NEPA documents” and describes agency 

principles and the approach for incorporating environmental justice issues in its RMP/EIS 

process. The principles include determining when proposed actions may pose adverse 

and disproportionate impacts on tribal communities and reservations; providing full 

involvement of tribes in BLM decisions that affect their “lives, livelihoods, and health”;

incorporating considerations in land use planning alternatives; and, in consultation with 

tribes, determining if land disposition proposals may affect real estate values and real 

income of the tribe. Tribal consultation should consider measures to eliminate or 

minimize impacts, document the findings, and recommend solutions. In addition to 

government-to-government consultation, scoping/issue identification meetings should be 

scheduled on tribal reservations to further encourage tribal participation. Information 

needs and related analyses should be incorporated in agency work plans for social and 

economic impact analyses, and the resulting considerations included in the analysis of the 

management situation, the affected environment chapter of the planning document, and 

the impact analysis (environmental consequences) chapter. An explanation of how 

environmental justice issues were considered and possibly mitigated also should be 

included in the description and rationale of the preferred alternative.

Meeting the requirements for environmental justice review in planning or project 

decisions does not constitute government-to-government consultation with tribes. 

Conversely, even if the tribal governments involved in a planning or project decision 

raise no objections to a proposed action, tribal members as individuals may raise 

environmental justice concerns, which must be considered.

5. American Indian Religious Freedom Act. The AIRFA is primarily a policy statement. 

It informs Federal officials that under the Establishment Clause of the First Amendment 

of the U.S. Constitution, the Federal Government should do nothing to prohibit the free 

exercise of religion. Section 1 reminds Federal agencies that Native Americans enjoy the 

same constitutional guarantees under the First Amendment as do all other people. 

Section 2 provides that the President will determine whether agency-specific laws and 

procedures conflict with the policy and need for congressional action. The President’s 

determination was made in a report to the Congress 1 year after the 1978 enactment of 

AIRFA.
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American Indian Religious Freedom Act

Resolves that it shall be the policy of the United States to protect and preserve for 

American Indians their inherent right of freedom to believe, express, and 

exercise their traditional religions, including—

 Access to sacred sites, including cemeteries, required in their religion;

 Use and possession of sacred objects necessary to the exercise of religious 

rites and ceremonies; and

 Freedom to worship through ceremonials and traditional rites without 

government intrusion or interference.

Figure IV-5 Provisions of the American Indian Religious Freedom Act.

Case law has established that AIRFA has an ongoing implementation requirement, 

obligating agencies to consult with tribal officials and tribal religious leaders when 

agency actions would abridge the tribe’s religious freedom by (1) denying access to 

sacred sites required in their religion; (2) prohibiting the use and possession of sacred 

objects necessary to the exercise of religious rites and ceremonies; or (3) intruding upon 

or interfering with ceremonies.

The AIRFA focuses not just on religious places, but also on religious practices—religious 

activities—and it directs agencies to consider both places and practices before taking 

actions that could affect them. The BLM’s corresponding policy is to avoid infringing on 

Native Americans’ religious rights. The BLM must examine proposed actions and 

authorizations, as well as routine management practices that could substantially restrict 

access or interfere with free exercise of religion.

Consultation for AIRFA Purposes

BLM consults with— Purpose of consultation is—

Elected officials or tribal 

representative(s) and/or native 

traditional religious leaders whom the 

tribal government has designated or 

identified for this purpose 

 To identify the potential for land 

management procedures to conflict 

with Native Americans’ religious 

observances

 To seek alternatives that would 

resolve the potential conflicts

Figure IV-6 Tribal consultation for purposes of Section 2 of the American Indian

Religious Freedom Act.

The provisions of AIRFA are not limited to federally-recognized Indian tribes. The 

constitutionally guaranteed freedom to follow the religion of one’s choice extends to all 

Native Americans—as to others—without qualification.
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As a first step in complying with AIRFA’s consultation requirements, BLM offices 

should review existing information to identify previously recorded places and practices of 

traditional religious importance. Then, the agency contacts all potentially interested 

federally recognized tribes and other Native American groups by letter and telephone as 

part of the NEPA scoping process. Although AIRFA is not directed at tribal 

governments, BLM’s normal government-to-government channels are the best starting 

points for consultation since it is commonly a topic of tribal concern. After that, the 

BLM should elicit information and views directly from the traditional religious 

practitioners identified by the tribal government whose interest would be affected. After 

initiating contact by letter and telephone, the BLM field manager or designated 

representative should follow up with face-to-face contact if places of religious 

significance or practices would likely be affected by BLM actions. If the agency learns 

that proposed plans or actions might disturb traditional religious places or disrupt 

traditional religious practices, the agency must seek ways to avoid or minimize those 

impacts to the extent practicable.

6. Executive Order 13007. This Executive order directs Federal land managing agencies 

to accommodate access to and ceremonial use of Indian sacred sites by Indian religious 

practitioners, and to avoid adversely affecting the physical integrity of such sacred sites 

to the extent practicable, permitted by law, and not clearly inconsistent with essential 

agency functions. A sacred site is defined as any “specific, discrete, narrowly delineated 

location on Federal land that is identified by an Indian tribe, or Indian individual 

determined to an appropriately authoritative representative of an Indian religion, as 

sacred by virtue of its established religious significance to, or ceremonial use by, an 

Indian religion; provided that the tribe or appropriately authoritative representative of an 

Indian religion has informed the agency of the existence of such a site.”

Many tribes would argue that the sacred is embedded in all natural phenomena and that 

sacred sites are often not confined or precisely delineated. The Executive order does not 

deny this more all-encompassing view of sacredness. However, its definition of sacred 

sites clearly focuses on the places that are more important than others for worshipping the 

sacred or conducting religious ceremonies, and it is those special places that Federal 

agencies are directed to consider. Sacred landscapes would be the subject of consultation 

under NEPA.

The order is very explicit about not creating new rights and not limiting duly authorized 

land uses. It is “not intended to, nor does it, create any right, benefit, trust responsibility, 

substantive or procedural, enforceable at law or equity by any party against the United 

States, its agencies, officers, or any person” (section 4). Nothing in it is to be “construed 

to require a taking of vested property interests [nor] shall this order be construed to 

impair enforceable rights to use of Federal lands that have been granted to third parties 

through final agency action” (section 3).

Executive Order 13007 directs Federal agencies to avoid harming sacred sites “to the 

extent practicable, permitted by law, and not clearly inconsistent with essential agency 
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functions.” This is a reasonably strong standard. It is stronger than the standard for 

protecting places of traditional religious and cultural importance under NHPA 

Section 106, which only requires agencies to “take into account” the effects of their 

actions on such places.

Executive Order 13007, Indian Sacred Sites

 Directs Federal land managers to accommodate Indian religious practitioners’

access to and ceremonial use of Indian sacred sites, and to avoid adversely 

affecting the physical integrity of such sites;

 Directs land managing agencies to implement procedures to carry out these 

accommodation and protection provisions, including reasonable notice of 

proposed actions or land use policies that may restrict future access to or 

ceremonial use of, or adversely affect physical integrity of, Indian sacred sites; 

 Cites Executive Memorandum of April 29, 1994, Government-to-Government 

Relations with Native American Tribal Governments, as the model for 

communication procedures; and

 Requires a report within 1 year on any statutory or administrative changes 

needed to meet the order’s directions, and on the procedures implemented or 

proposed to facilitate consultation with appropriate Indian tribes and religious 

leaders.

Figure IV-7 Provisions of Executive Order No. 13007

The order required agencies to report to the President within 1 year addressing changes 

needed to accommodate access and use of Indian sacred sites on Federal lands, or 

changes needed to avoid adversely affecting the physical integrity of sacred sites. The 

Order also required agencies to address in their report the procedures implemented or 

proposed, “to facilitate consultation with appropriate Indian tribes and religious leaders 

and the expeditious resolution of disputes relating to agency action on Federal lands that 

may adversely affect access to, ceremonial use of, or the physical integrity of sacred 

sites.”

The BLM reported that no statutory or administrative changes were needed and provided 

copies of MS-8160 (1990) and Handbook H-8160-1 (1994) as its procedures for 

facilitating consultation.

Executive Order 13007 reinforces the original intent of AIRFA expressed 18 years earlier 

with regard to sacred sites. A major purpose of the Executive order is to improve 

communication between land managing agencies and tribes. The tribal government is the 

appropriate starting point for initiating an official dialogue. The BLM also generally 

consults with tribal representatives and Indian religious practitioners designated by the 

tribe for this purpose. The BLM’s initial correspondence should be addressed to the chief 

executive of the tribe, but communication among BLM staff, tribal staff, and religious 

practitioners can proceed after the official government-to-government contact.
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Consultation for Executive Order 13007 Purposes

BLM consults with— Purpose of consultation is—

Elected officials or tribal 

representative and/or 

appropriately authoritative 

representative of an Indian 

religion whom the tribal 

government has identified for 

this purpose 

 To determine whether proposed land 

management actions would—

o Accommodate Indian religious 

practitioners’ access to and ceremonial 

use of Indian sacred sites on Federal 

lands; and/or

o Avoid adversely affecting the physical 

integrity of Indian sacred sites on Federal 

lands.

 To seek alternatives that would resolve 

potential conflicts.

Figure IV-8 Tribal consultation for purposes of Executive Order No. 13007, 

“Indian Sacred Sites.”

a. Identifying sacred sites. Aside from a few exceptional cases where well-known 

physical markers are present, only tribal representatives have the knowledge needed 

to identify a tribe’s sacred sites. A tribe may name an appropriately authoritative 

representative of an Indian religion to provide this information. Federal officials 

cannot know to accommodate access to and ceremonial use of Indian sacred sites, and 

to avoid adversely affecting them, unless the tribe identifies them. Identification can 

only occur by consultation. In some cases, a tribe may be reluctant to tell BLM 

where a site is located, because BLM cannot protect that information or because the 

site may no longer be sacred if its location is revealed. In such cases, the Federal 

officials should ask if there is a broader area that should be protected, within which 

there may be a sacred site.

b. Any place can be sacred. Sacred sites include a variety of places and landscapes, 

including but not limited to springs, mountains, caves, rock shelters, rock art sites, 

archaeological sites, burial locations, and stone and earth structures. Some sacred 

sites would not routinely be recorded as archaeological sites by archaeological 

surveys. They can only be identified by Indian tribes. Other sacred sites might well 

be recorded as a result of archaeological surveys and their sacredness determined later 

through consultation with tribes.

Age is often irrelevant to sacredness. A location with little or no antiquity may be 

vitally important to a tribe as a religious or ceremonial site. Because some Indian 

religious practitioners are considered to be in a continual process of revelation, the 

actual practice of ceremonies and rituals by these individuals establishes and affirms a 

site’s sacredness. In many cases, there may be no inherent element of a landscape 

that makes one place sacred and another not. It may be the practices themselves that 
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took place there that have conferred the element of sacredness to that spot on the 

landscape.

A place may have traditional religious importance even if not regularly visited by 

religious practitioners. Some sacred sites may be used only infrequently for special 

ceremonial purposes. Some highly sacred places may never be visited at all because 

they are considered too powerful or dangerous for a person to survive physically or 

spiritually.

Different places can be sacred at different times. The number, nature, and locations 

of sacred sites are not fixed. Information the BLM obtains at one point in time about 

such places may not be sufficient to assess the potential effects of undertakings upon 

that site at a later time. Religious observances are subject to change in form or 

location and can take on different meaning over time.

The setting is often highly important. The integrity of a site that has traditional 

religious importance can be adversely affected if damaged directly or indirectly 

through the introduction of visual intrusions or changes in sounds or air quality.

c. Distinguishing between sacred sites and other places of cultural importance. In 

some cases, it may not be possible to differentiate among sacred sites and properties 

of traditional religious and cultural importance (sometimes called traditional cultural 

properties or TCPs) that may be eligible for listing in the NRHP. A sacred site may 

or may not be eligible for listing. Sacred sites are not addressed in the NHPA and the 

conclusion that a property fits the definition of a sacred site does not automatically 

confer significance to it relative to the NRHP.

TCPs differ from sacred sites in several important respects. TCPs are considered 

under NHPA Section 106 to determine their eligibility to the NRHP. TCPs and sacred 

sites can also be considered under FLPMA. TCPs can be secular, while sacred sites 

cannot. TCPs normally must be at least 50 years old for entry in the NRHP, while 

sacred sites even if more than 50 years old may not be appropriate for NRHP listing. 

The similarity among these is that tribal identification is necessary as the beginning 

point for compliance with the intent of the law or executive order. 

B. Ethnographic Studies

1. Introduction. Ethnographic studies, or ethnogeographies, are particularly useful at the 

pre-decisional stages of planning when they focus on land- and place-based concerns. 

Ethnographic studies conducted early in the planning cycle can be an effective tool to 

address tribal concerns on a broad landscape scale. Ethnographic studies may require 

interviews with subject matter experts (usually tribal members) and can contribute to a 

robust decisionmaking process. When considering such studies, tribal governments 

should be involved at an early stage to identify the key questions or issues to be explored. 

Ethnographic studies may be phased as a project progresses, and the level of effort should 
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be proportionate to the decisions being made at any given phase. Such strategies should 

be explored during consultation at an early stage.

Overview ethnographies early in project planning, based on existing information, should 

identify tribes likely to be affected by the project; landscape-scale issues that could affect 

project designs and siting decisions; known areas and resources likely to be of interest to 

the affected tribes; the types of resources and areas likely to occur that are of historic and 

current tribal interest; and the need for and focus of further field surveys, informant 

interviews, and government-to-government consultation. 

As project plans and tribal consultation progress, more in-depth and focused ethnographic 

information and consultation may be needed to identify and evaluate specific places of 

traditional and religious importance; to identify tribal values associated with cultural or 

natural resources; to define more generalized cultural concerns that characterize a tribe’s 

relationship with the land; and to resolve potential impacts to land and resources of 

concern. 

It may be necessary to include a cadastral survey and management of land boundary plan 

within the ethnographic report. Management of land boundary plans may be needed 

when (1) boundaries and legal status of sacred sites, TCPs, and areas of traditional land 

uses lie close or adjacent to changes in land ownership or (2) the land status of such 

resources is uncertain or could be disputed.

2. Scale. Ethnographic studies or inventories, unlike archaeological inventory, seek not to 

identify things but to accurately profile values and the cultural context of their occurrence 

on the landscape. The BLM will not normally require separate ethnographic surveys for 

individual actions evaluated within EAs. Such actions are more limited in scope and 

BLM requests to tribes to identify sacred sites or traditional use areas should not be 

burdensome. Another means for addressing such concerns is the earlier identification of 

resources and important places through landscape-scale studies outside specific planning 

schedules. This broader approach can often avert potential disagreements and delays 

during planning actions and strengthen trust.

In contrast, for most EISs, the scope, impact, and controversy of the proposed action are 

far more widespread. Because the identification of sacred sites and traditional use areas 

could be burdensome for tribes for the lands affected by these large-scale projects, the 

BLM may require an applicant to contract for ethnographic studies as part of this 

environmental review process. Contract methodologies, objectives, and ethnographer 

qualifications must all be approved in advance by the BLM in consultation with the 

tribe(s) of interest in the study. The BLM will use the results of these studies, along with 

other information as appropriate, to complete consultation under a variety of authorities.

3. Who Pays. When the BLM is engaged in RMP formulation, the agency itself may fund 

such studies when information pertaining to traditional lifeways, traditional use of plants 

and animals, trails, and sacred sites is needed to make decisions about land allocations. 
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Internal BLM-generated undertakings, such as recreation projects or land restoration 

projects, may also require that the agency commission ethnographic studies (including 

management of land boundary plans where needed).

Applicants, permittees, or operators (regardless of whether the undertaking is being 

evaluated through an EA or EIS) are responsible for funding ethnographic studies 

(including management of land boundary plans where needed) when the anticipated 

information is required by the BLM to fulfill its project assessment obligations. These 

include identifying sacred sites, historic properties, and places of traditional cultural or 

religious importance within an area of potential effects; determining their significance; 

and designing treatment programs for significant properties affected. 

4. When Needed. Traditional use areas and sacred sites are places that are integral to a 

community’s history, traditional economy, religious expression, or ceremonial activity. 

These places are seen by tribes as necessary to maintain the continuing cultural identity 

or religious practices of the community. For many tribes, the links to specific places 

have been maintained, at least in part, but for many others, those links have been broken 

through centuries of conflict, displacement, assimilation policies, and other cultural 

disruptions. Ethnographic studies may be needed to identify specific places known to 

tribes as well as to capture the memory of them as it may exist in stories and elders’

memories. Ethnographic studies may also be necessary to identify cultural beliefs and 

practices that could affect or be affected by proposed land uses or proposed land tenure 

adjustments.

5. Decision Considerations. There are several factors to consider when determining if an 

ethnographic study is warranted. As a general rule, before initiating this type of study, 

the BLM should:

 Establish the area to be covered by the planning effort or affected by a proposed 

action.

 Review the management of land boundary plan, if available.

 Consult with tribes to determine the nature and extent of tribal concerns that occur 

in the area.

 Consider tribal communication protocols for sharing information about properties 

of traditional religious and cultural importance and sacred sites. In some cases, 

tribes will be able to provide information that traditional use areas or sacred sites 

are present and provide sufficient information to evaluate their importance and 

determine effects of planning or proposed action through the consultation process 

itself. If this is the case, the BLM can utilize this information without conducting 

an ethnographic study.

 Document consultation efforts if, after a reasonable and good faith effort to 

consult, tribes do not provide information regarding or concerns pertaining to 
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culturally sensitive areas and locations, or areas that may be affected by the 

action. BLM may continue planning and implementation, including compliance 

with NEPA and other authorities, such as NHPA.

 Determine what must be done in order to meet the requirements of Executive 

Order 13007 if a tribe indicates that sacred sites are present, but cannot or will not 

provide specific location or other information about them. An ethnographic study 

can help BLM to determine how to (1) accommodate access to and ceremonial 

use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely 

affecting the physical integrity of such sacred sites.

 Propose the use of an ethnographic study, in consultation with the tribes, to 

acquire information about traditional use areas. If, after a reasonable and good 

faith effort to consult, tribes provide information that such areas may be affected 

by the proposed action, but refuse to, or cannot, provide information necessary for 

the BLM to determine their importance and whether they could be affected by the 

planning or proposed authorization, then the BLM should document this situation. 

In addition to consulting with the tribes, the BLM office should also conduct an 

archaeological and literature records search for the project area early in the 

process.

 Consider that a focused ethnographic investigations may be warranted if 

consultation indicates that tribes may have knowledge of past land use practices 

(e.g., historic Indian fire practices) and their effects upon land health issues.

 Consider ethnographic fieldwork or targeted informant interviews if issues of 

environmental justice arise. These may inform the agency on tribal political and 

economic experiences that shape tribal perspectives on land management 

practices.

In an innovative partnership with the Northern Cheyenne Tribe and Chief Dull Knife 

College, the Montana State Office initiated ecoregional ethnographic assessments for the 

Northwestern Plains and Middle Rockies ecoregions. Designed to feed into ongoing 

rapid ecoregional assessments, these studies will yield a systematic overview of the 

ethnographic, historic, and archaeological information for the regions. The information 

will be incorporated into RMPs and will influence oil and gas leasing decisions, lease 

stipulations, and determinations of renewable energy zones. Tribal benefits include being 

able to affect the management of important heritage resources on aboriginal lands and 

creating a GIS database of important heritage resources within their tribal historic 

preservation office. The tribal college is strengthened through creating a permanent 

archive of important tribal heritage resources as well as ethnographic and historic 

information; by providing select students with internship opportunities; and by offering 

students practical analytical experiences that are incorporated into curriculum materials. 

Information being collected as a result of archival and literature searches, oral history 

interviews, site visits by tribal elders, and site recording will be organized to protect 

proprietary information. The data will be housed to provide access to: (1) tribal 
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information only; (2) tribal/BLM information only; and (3) tribal/BLM/public 

information.

C. Coordinating Tribal Consultation Obligations under Different Laws

Efficiencies can be gained in the environmental review process by coordinating procedures for 

compliance with NEPA, NHPA Section 106, section 3 of NAGPRA, AIRFA, Executive Order

13007, and the BLM’s tribal consultation responsibilities. Coordination will allow the BLM to 

(1) conserve resources by gathering information that helps to support all of these requirements at 

the same time; (2) reduce redundancy and avoid unexpected and unnecessary delays by 

synchronizing the schedules for meeting these requirements; (3) make it easier for the public and 

tribes to understand when and how to contribute to the BLM decision-making process for various 

issues; and (4) reduce litigation liability by ensuring that the requirements of these processes are 

met in a timely manner. 

While NHPA Section 106 agreements are not intended to comply with statutes other than NHPA, 

efficiencies can be gained by coordinating consultation activities. In developing NHPA 

Section 106 programmatic agreements (PAs), agencies should take into account efforts required 

by other Federal laws that relate to heritage resources, such as NAGPRA and ARPA. The 

coordination of the agency’s compliance efforts should be recognized in Section 106 PAs and 

duplication of efforts should be avoided by tailoring the Section 106 process to accommodate 

their requirements. 

Project efficiencies may be gained by agreeing ahead of time how NAGPRA consultation will 

take place should Native American human remains or other cultural items be discovered. When 

crafting PAs, offices should reference NAGPRA and the general steps that will take place when 

discoveries of Native American human remains or other cultural items occur as a standard 

stipulation, and then reference the plan of action (43 CFR 10.5(e)) or comprehensive agreement 

(43 CFR 10.5(f)). Either document may be attached to the PA as an appendix for reference, but 

they must be standalone documents (see Chapter X, section B.3.g).

One of the principal opportunities for coordinating NEPA and NHPA 106 compliance is the 

public notification and comment process in situations where an EIS is found to be appropriate. 

For example, rather than carry out a separate procedure for public notification to meet NHPA 

Section 106 requirements, the BLM may reference both authorities when publishing a notice of 

intent or notice of availability in the Federal Register and/or a notice of a public meeting in the 

newspaper. Referencing both statutory processes informs the public of their opportunity to bring 

forward broad environmental concerns as well as Section 106-related information, concerns, and 

opinions.

Regulations for both NEPA and NHPA require that agencies coordinate their compliance 

processes to the extent possible. Therefore, BLM offices must incorporate into their NEPA 

analysis available information on potential impacts to cultural and tribal resources and possible 

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Offices must complete both the NHPA Section 106 process and tribal consultation prior to 

making a final decision on a proposed action.

NEPA and NHPA: A Handbook for Integrating NEPA and Section 106 was published in March 

2013. This guidance was prepared jointly by the ACHP and the CEQ. It provides advice on 

implementing provisions added to the Section 106 regulations in 1999 that address both 

coordination of the Section 106 and NEPA reviews and the substitution of NEPA reviews for the 

Section 106 process. 

Appendix 4 presents a side-by-side matrix that illustrates the procedural, informational, 

participation, and documentation requirements of NEPA, NHPA Section 106, and tribal 

consultation. The right-hand column also shows key recommendations for coordinating the 

processes and successfully meeting compliance requirements prior to making a decision. (Note 

that completing a CX for an action may satisfy BLM’s NEPA obligations but will not satisfy the 

BLM’s NHPA Section 106 requirements.)

D. Key Differences between Various Authorities

The BLM’s obligation to consult with Indian tribes on a government-to-government basis cannot 

be fulfilled only by consulting about historic properties significant to the Indian tribes under 

Section 106 of the NHPA. Each Federal statute with a requirement to either coordinate or 

consult with Indian tribes carries with it the unique, separate obligation to consult on a 

government-to-government basis. In practice, government-to-government consultation may 

cover multiple issues of which Section 106 consultation is likely to play only a part.

NEPA’s project planning process and FLPMA’s land use planning process can each recognize 

and consider impacts to heritage resources that do not fit within the scope of the Section 106 

process. There are a number of important legal differences when comparing the general 

authorities of FLPMA and NEPA to NHPA. Important distinctions can be noted in terms of 

(1) the types of resources to be considered, (2) general consultation procedures, and (3) timing 

for inventorying and collecting data about heritage resources. 

The reach of NHPA is restricted to historic properties, and these are understood to be eligible for 

or listed on the NRHP under specific criteria at 36 CFR 60.4. Neither FLPMA nor NEPA 

requires this level of qualification in order to be inventoried, identified for management, or 

considered in the decisionmaking process. FLPMA land use planning only recognizes that 

historic, cultural, and archaeological resources must be managed regardless of significance 

unless adopted LUPs specify non-management options, while NEPA’s project planning covers 

important historic and cultural aspects of our national heritage. Important is undefined in the law 

and its regulations.

Thus, it may be possible to consider, manage, and protect certain heritage resources under NEPA 

that might not qualify for consideration as historic properties under NHPA. Plant gathering 

areas, traditional landscapes, and some traditional cultural properties may still be evaluated and 
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protected as part of the NEPA project planning process even though it might be difficult to 

determine them as eligible for listing in the NRHP.

NEPA regulations for project planning only require agencies to “make diligent efforts to involve 

the public in preparing and implementing their NEPA procedures” and to “provide public notice 

of NEPA-related hearings, public meetings, and the availability of environmental documents.” 

The public participation requirement is significant, but it does not obligate the agency to engage 

in a dialogue with the public or tribes or seek agreement on issues related to the NEPA process. 

Indeed, the NEPA project planning process does not mandate the type of engagement 

contemplated by the explicitly defined use of consultation to fulfill an agency’s Section 106 

obligations. 

State and field offices should utilize the internet to facilitate public notification under NHPA 

through the use and distribution of NEPA Project Logs. Decision documents posted on the web 

stimulate public involvement and feedback on environmental documents and proposals on public 

lands. Public comment periods will continue to be initiated through official notifications (direct 

mailing, local and/or state newspapers, Federal Register notices). However, the interested public 

should also be encouraged to check these internet-based NEPA logs frequently to ensure 

adequate time for input on specific projects, especially in the case of projects without a planned 

formal comment period. BLM contact persons should be identified on the individual logs. (A 

good example of a field office that utilizes this strategy of public outreach is the Rio Puerco 

Field Office, Albuquerque District, New Mexico. 

Likewise, FLPMA’s land use planning does not make any reference to a process of consultation 

with the public similar to requirements of NHPA. The BLM cannot simply rely on the 

proscribed public participation and notification requirements of these other two laws to comply 

with the Section 106 process of NHPA or with BLM’s general trust obligations to consult. As 

discussed above, coordinating NEPA and NHPA compliance is encouraged. Generally, NEPA 

project planning procedures cannot substitute for the Section 106 process. However, 36 CFR 

800.8 does allow an agency to integrate Section 106 into the NEPA process and utilize the 

NEPA process for Section 106 purposes provided that the conditions set out in 36 CFR 

800.8(c)(1-5) are met.

Slight but important differences are found in the requirements governing the timing and 

collection of data at different stages of each law’s process. The Section 106 process of NHPA 

allows for a phased identification approach. Agencies are also not required to have conducted a 

complete inventory of historic properties for all alternatives analyzed in a NEPA document. 

NEPA requires agencies to identify and assess impacts to heritage resources as part of its 

documentation; however, it is possible that more complete data regarding historic properties may 

be identified after release of NEPA documents.
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CHAPTER V. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

NATIONAL CONSERVATION LANDS PROGRAM

A. Overview

This chapter explains how National Conservation Lands managers and staff carry out tribal 

consultation and coordination responsibilities in accordance with legal requirements for BLM’s

National Conservation Lands, which include national monuments, national conservation areas,

components of the National Wilderness Preservation System; wilderness study areas (WSAs); 

components of the National Wild and Scenic Rivers System; national scenic or historic trails 

designated as components of the National Trails System; any area designated by Congress to be 

administered for conservation purposes; and the National Conservation Lands Science Program. 

These lands feature exceptional scientific, cultural, ecological, historical, and recreational values, 

and differ tremendously in landscape and size. BLM management of these National 

Conservation Lands components must comply with specific designating acts of Congress and 

Presidential proclamations by conserving, protecting, and restoring the resources and values for 

which they were designated. 

While National Conservation Lands units are designated based on a general recognition of their 

outstanding natural, scientific, scenic, or cultural values, BLM managers are rarely aware of all

the values they contain. Relatively little public land has been carefully inventoried, marked, 

studied, or been the subject of ethnographic study to identify trails, traditional use areas, and 

sacred places of value to tribes. Therefore, tribal consultation and building sustained positive 

partnerships with Indian tribes is one of the best ways the BLM can understand and document 

the unique values the BLM is charged with managing and protecting within National 

Conservation Lands.

The BLM’s National Conservation Lands mission is to conserve, protect, and restore nationally 

significant landscapes and places that have outstanding cultural, ecological, and scientific values 

for the benefit of current and future generations. These landscapes, and the natural and heritage

resources they contain, create common ground with tribes who also want to conserve or preserve 

heritage resources, traditional use areas, trails, and sacred sites. 

This guidance provides tools for agency land managers to fulfill the National Conservation 

Lands mission to conserve, protect, and restore the nationally significant landscapes and places 

that have outstanding cultural, ecological, and scientific values through collaborations with tribes 

in surrounding areas. Because individual National Conservation Lands units contain the full 

gamut of resources and lands of importance to Indian tribes, managers and staff should consult 

MS-1780, Tribal Relations, and individual chapters within this handbook regarding consultation 

issues relevant to particular resources and programs.

While many of the directives within MS-1780 and H-1780-1 pertain to National Conservation 

Lands and tribal relations generally, policies and procedures that can apply specifically to

National Conservation Lands and tribal relations opportunities are identified below. National 

program policies generally applicable to BLM public lands apply to National Conservation 
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Lands components to the extent that they are consistent with the designation proclamation or 

legislation, other applicable law, and BLM policy.

Please note that the full content of all of the completed National Conservation Lands manuals, 

handbooks, and strategic plans referenced in this chapter can be found on the BLM website and 

WO 400 National Conservation Lands Share Point Site. These include MS-6100, MS-6220, 

MS-6250, MS-6280, MS-6330, MS-6340, and MS-6400.

The National Conservation Lands basic authorities derive from the FLPMA and 2009 Omnibus 

Public Land Management Act of 2009 (Pub. L. 111-11). The FLPMA directs BLM’s 

interdisciplinary course of multiple-use and sustained-yield management “in a manner that will 

protect the quality of scientific, scenic, historical, ecological, environmental, air and 

atmospheric, water resource and archeological values.”

The Omnibus Act formally codified the National Conservation Lands after years of existence 

derived from administrative origins. The act provided that, “In order to conserve, protect, and 

restore nationally significant landscapes that have outstanding cultural, ecological, and scientific 

values for the benefit of current and future generations, there is established in the Bureau of Land 

Management the National Landscape Conservation System” (Pub. L. 111-11, section 2002 (a)). 

“The Secretary shall manage the system in accordance with any applicable law (including 

regulations) relating to any component of the system ... and in a manner that protects the values 

for which the components of the system were designated” (section 2002(c)).

MS-6100 provides general policy to BLM personnel on managing National Conservation Lands. 

The manual reaffirms that BLM’s mission for the National Conservation Lands is to conserve, 

protect, and restore nationally significant landscapes and places that have outstanding cultural, 

ecological, and scientific values for the benefit of current and future generations. The BLM’s 

vision for the National Conservation Lands is to be a leader in conservation by protecting 

landscapes, applying evolving knowledge, and bringing people together to share stewardship of 

the land.

While all National Conservation Lands components pertain to tribal relations, some goals

identify more specific National Conservation Lands and tribal relations opportunities and are 

identified here.

An overarching and explicit commitment by BLM is to conserve and protect natural and heritage

resources that are sacred to Indian tribes. (See MS-6100, National Conservation Lands, Section 

1.6 A, General Principles for the Management of National Conservation Lands Units.) 

Recognizing that the National Conservation Lands represent a relatively small portion of the land 

managed by the BLM and other Federal, State, tribal, and local government entities, these special 

conservation areas must be managed within the context of the larger landscape. A collaborative 

landscape approach to the management of National Conservation Lands provides opportunities 

to promote healthy landscapes and contribute to the local tribal economies and social fabric of 

the community. To instill this ethic, the BLM seeks to engage tribes and other interested parties

at the earliest opportunity in National Conservation Lands’ planning, management, and resource 
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and geospatial data sharing, consistent with the Federal Advisory Committee Act and the 

Sunshine in Government provisions in section 313 of the FLPMA using existing collaborative 

forums, including government-to-government consultation with tribes. This includes working

with tribes and others to identify and strive to protect lands that are critical to the long-term 

ecological sustainability of the landscape. The BLM also seeks to serve as an information 

resource for grassroots efforts to explore possible designations through legislation pertaining to 

the National Conservation Lands and ensure a diversity of viewpoints is brought to the table, 

including tribes. Such a collaborative approach is intended to: (1) cultivate a sense of shared 

stewardship for the BLM-managed public lands and advance the relevance of conservation lands;

(2) connect diverse groups of people, interests, and government organizations by building strong 

partnerships; (3) attract volunteers; and (4) engage youth through education, interpretation, and 

outreach. This includes working in collaboration with tribes and other partners on outreach and 

media materials addressing natural and heritage resources. Tribal perspectives will be sought 

and incorporated into outreach, educational, and interpretive materials since tribal views on the 

effects of use of such National Conservation Lands units as scenic or historic trails or wild and 

scenic rivers often differ significantly from non-tribal views (e.g., immigrant settlers to the 

American West).

B. Components of the National Conservation Lands System

1. National Monuments, National Conservation Areas, and Similar Designations. The 

BLM MS-6220, National Monuments, National Conservation Areas, and Similar 

Designations, provides the BLM Officer and program staff professionals with general 

policies for the administration and management of these designations. These 

designations provide opportunities for collaborative tribal relationships.

Tribal Partnerships and Other Opportunities

The BLM enjoys a partnership with Pueblo de Cochiti and Sandoval County to provide 

access, facility development and maintenance, resource protection, research 

opportunities, public education, and enjoyment in the Kasha-Katuwe Tent Rocks 

National Monument. Established in 2001, the monument is located on lands with 

ancestral significance to the Pueblo de Cochiti. The pueblo serves as a gateway 

community to the monument since it administers 3 miles of access road through tribal 

lands. The establishing proclamation directs the BLM to manage the lands in close 

cooperation with the Pueblo de Cochiti. The proclamation further requires that the 

monument’s management plan protect the objects identified in the proclamation and 

further the purposes of the AIRFA. The Pueblo de Cochiti and the BLM jointly desire to 

maintain and preserve the natural and heritage resources, regulate visitor access and use, 

provide visitor information and interpretation, and stimulate the pueblo’s economy 

related to tourism. Cooperative management provides for on-the-ground efforts to 

maintain and protect natural and cultural values enhanced through stewardship by tribal 

members.
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2. National Wild and Scenic Rivers System. The 1968 Wild and Scenic Rivers Act 

(WSRA; 16 U.S.C. 1271) established a National Wild and Scenic Rivers System that 

protects the special character of certain rivers, while recognizing the potential for use and 

development. Many of these river corridors support habitats critical for culturally 

sensitive species and long served as focal points for ancient settlements and special use 

areas. 

The WSRA also requires Federal agencies to consider potential wild, scenic, and 

recreational river areas during their planning processes, and provides the Secretary of the 

Interior and the Secretary of Agriculture authority to acquire lands within the boundaries 

of any component of the National Wild and Scenic Rivers System. Lands owned by an 

Indian tribe may not be acquired without the consent of the tribe as long as the Indian 

tribe is following a plan for management and protection of the lands that ensures its use 

for purposes consistent with the WSRA. (See Section 6(a)(1) of the Wild and Scenic 

Rivers Act.)

The BLM works in partnership with tribes to coordinate the management of wild and 

scenic rivers in several States. In Oregon, for example, the Oregon Omnibus Wild and 

Scenic Rivers Act of 1988 (16 U.S.C. 1274) designated over 173 miles of the Deschutes 

River and directed the Secretary of the Interior (BLM) to administer 100 miles of it 

through a cooperative management agreement between the Confederated Tribes of the 

Warm Springs Reservation (the Confederation) and the State of Oregon (as provided in 

section 10(e) of the act). The same legislation also designated 147 miles of the John Day 

River and directed the Secretary of the Interior (BLM) to administer the river through a 

cooperative agreement with the State of Oregon. The river is managed cooperatively by

a number of entities, including the Confederation. BLM entered into an MOU with the 

Confederation, BIA, the State of Oregon, and the John Day Coalition of Counties. The 

Confederation was involved in developing the management plans for both rivers and 

participates in their respective day-to-day management.

By executing the 2002 cooperative management agreement covering the Lower 

Deschutes River and the 2007 MOU for the John Day River, the BLM agrees to joint 

management plans for the rivers supported by all signatory parties. The agency and the 

Confederation agree to cooperate and coordinate with each other in implementing the 

decisions and regulations of the plan. They meet periodically to discuss implementation 

issues, tasks, priorities, and duties and to agree upon a schedule for management actions 

and projects. They develop annual written work plans. They consult and seek consensus 

on key decisions pertaining to plan implementation. Coordination by technical core team 

members and consultation by managers and executive board representatives occurs at 

regular intervals.
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Alaska wild and scenic rivers have specific provisions through the ANILCA for 

protecting and providing opportunities for subsistence uses by rural residences, Native 

and non-Native alike. Subsistence uses are defined in ANILCA, Title VIII, Section 803, 

as the “customary and traditional uses by rural Alaska residents of wild, renewable 

resources for direct personal or family consumption as food, shelter, fuel, clothing, tools, 

or transportation; for the making and selling of handicraft articles out of nonedible 

byproducts of fish and wildlife resources taken for personal or family consumption; for 

barter, or sharing; and for customary trades.” The BLM ensures that rural residents 

engaged in subsistence uses have reasonable access to subsistence resources on public 

lands (including within wild and scenic river corridors). 

MS-6400, Wild and Scenic Rivers—Policy and Program Direction for Identification, 

Evaluation, Planning, and Management, provides policy, direction, and guidance for the 

identification, evaluation, planning, and management of eligible and suitable wild and 

scenic rivers and the planning and management of designated components of the National 

Wild and Scenic Rivers System. The Director, state directors and district managers/field 

managers are responsible for “developing and maintaining relationships with tribal 

governments, interested in the management of designated rivers or the inventory, 

evaluation, and management of potential additions to the National System.”

BLM must coordinate and consult with tribes concerned with the inventory, evaluation, 

and management of potential additions to the Wild and Scenic Rivers System. This tribal 

interaction and public involvement are critical, as rivers, due to their linear nature, often 

cross jurisdictional boundaries. Managers should involve any affected or concerned party 

at all stages of the wild and scenic river process. The manual also outlines eligibility 

criteria for outstandingly remarkable cultural values that can be modified as appropriate

to make them more meaningful in the area of comparison.

“The river, or area within the river corridor, contains rare or outstanding examples of historic or 

prehistoric locations of human activity, occupation, or use, including locations of traditional 

cultural or religious importance to specified social and/or cultural groups. Likely candidates 

might include a unique plant procurement site of contemporary significance.” (MS 6400 Chapter 

3E7)

The wild and scenic river suitability evaluation guidance provides 13 factors to be 

analyzed including factor 11 that considers how designation may help or impede the 

goals of tribal governments or other governmental entities.

3. National Scenic and Historic Trails Program. The BLM is one of several agencies

that share responsibility for management of national scenic and historic trails. The BLM 

also serves as National Trail Administrator for three national historic trails, two of which 

are administered jointly with the NPS. Many recognized trails follow ancient routes of 

importance to tribes and intersect habitats of culturally sensitive plants and heritage

resources.
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National scenic trails are extended trails that provide outdoor recreation and conserve and 

enhance the various qualities—scenic, historical, natural, and cultural—of the areas they 

pass through. 

MS-6250, National Scenic and Historic Trail Administration, also addresses specific functions 

delegated to the BLM from the Secretary of Interior pursuant to the National Trails System Act 

regarding how to conduct national scenic or historic trail feasibility studies, how to administer a 

national scenic or historic trail upon designation by Congress, and the responsibilities of national 

scenic or historic trail administrators.

MS-6280, Management of National Scenic and Historic Trails and Trails Under Study or 

Recommended as Suitable for Congressional Designation, states that an objective of the 

BLM is to develop and maintain relationships, and collaborate and coordinate with tribes 

and other interested parties regarding management of national trails. The BLM Director

and district/field managers are to develop and maintain relationships, including 

collaborating and coordinating with tribes and other interested parties and ensure efforts 

are made to manage national trail resources on shared trail boundaries in accordance with 

applicable laws and in a manner compatible with the respective landowners and 

management entities and in coordination with tribes and other interested parties.

In the management and stewardship of national trails and national trail management 

corridors, the BLM encourages, assists, and establishes cooperative tribal relationships, 

partnerships, and stakeholder involvement to increase efficiencies, improve awareness 

and communication, promote consistency, and expand participation in the management of 

the national trails.

The BLM must also conduct and maintain a national trail inventory to ensure resource 

data consistency and information sharing. The national trail inventory is conducted in 

cooperation with tribes and interested parties in accordance with policy, agreements, and 

protocol. The BLM manager should coordinate inventory efforts with tribes, other 

interests, SHPOs, and the ACHP to maximize efficiencies. The BLM may offer technical 

training and/or limited financial support to tribes and other parties who are interested in 

participating in national trail inventory and related monitoring.

Tribes are invited to participate in all National Trails System and trail-specific workshops 

and conferences. Strong partnerships can be developed with tribes to enhance the 

interpretation and visitor experiences at national historic trails.

Tribal Partnerships and Other Opportunities

BLM Montana Field Offices actively consult with the Nez Perce Tribe, the Confederated 

Tribes of the Colville Reservation, and the Confederated Tribes of the Umatilla

Reservation regarding any Federal undertakings that could potentially affect areas along 

the designated trail route, as well as prior to initiating any interpretive efforts involving 
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the trail. Revisions of the Comprehensive Trail Management Plan incorporate 

consultation efforts and proactive working relationships with other Indian tribes whose 

aboriginal territories are crossed by the designated trail route.

4. Wilderness Program

a. Congressionally Designated Wilderness. 

The Wilderness Act and the Religious Freedom Restoration Act (42 U.S.C. 2000bb–

2000bb-4) established the general legal authority for Congress to designate and for 

agencies to manage wilderness. MS-6340, Management of BLM Wilderness, includes 

Section 6340.19, Traditional Use by Native Americans, which states:

“Many wilderness areas are, in whole or in part, also important locations for traditional uses 

by Native Americans, from areas important for the collection of natural materials, to places 

for traditional religious practice, and entire landscapes of cultural identity. Traditional uses in 

wilderness are managed in accordance with the Wilderness Act, the National Historic 

Preservation Act, the Archaeological Resources Protection Act, the American Indian 

Religious Freedom Act (AIRFA), the Religious Freedom Restoration Act (RFRA), the Native 

American Graves Protection and Repatriation Act (NAGPRA), Executive Order 13007—

Indian Sacred Sites, the Department of the Interior Tribal Consultation Policy of December 

2011, and BLM Manual 8120.”

The following are some examples of how Native Americans exercise their rights in 

wilderness—

 Access to sacred sites important to their religion,

 Use and possession of sacred objects important to the exercise of religious 

rites and ceremonies, and

 Freedom to worship through ceremonies and traditional rites without 

government intrusion or interference.

The BLM allows Native American traditional practices that are consistent with 

preserving wilderness character, as well as uses guaranteed by treaty reserved rights

which may impair wilderness character. In addition, the BLM must use the following 

guidelines in managing traditional uses in wilderness areas: 

 Traditional uses and sacred locations can only be identified by Indian tribes or 

tribal representatives. The BLM must consult with designated representatives 

of appropriate federally recognized tribes to identify these uses and locations. 

If affected Indian tribes are reluctant to divulge this information, the BLM 

assumes that these sites and resources will be adequately protected if the 

area’s wilderness character is preserved.
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 Native Americans may have rights guaranteed by treaty to collect natural 

materials from a wilderness area for religious or subsistence purposes without 

additional authorization from the BLM. In addition, under AIRFA and 

Religious Freedom Restoration Act, Native Americans may be permitted by 

the BLM to collect for religious purposes natural materials that are not 

allowed to be collected by other members of the public even though not 

explicitly guaranteed by treaty.

 In accessing a sacred site or collecting natural materials in wilderness, Native 

Americans generally may not use motor vehicles, motorized equipment, 

motorboats, mechanical transport, or land aircraft, unless the use of such 

prohibited tools is guaranteed by treaty or any special provisions in enabling 

legislation. However, they could be authorized if an analysis of the 

“minimum tool” necessary indicates that the project or activity is necessary to 

meet the minimum requirements for the administration of the area and the tool 

or method used results in the least impact to the physical resource or 

wilderness values.

 In general, the BLM will not close a wilderness or portion of the wilderness 

for Native American traditional practices. In rare instances, upon the request 

of an Indian tribe or Indian religious community, the BLM may temporarily 

close to the general public use of one or more specific portions of a wilderness 

area in order to protect the privacy of traditional cultural and religious 

activities in such areas by Native Americans. Any such closure must affect 

the smallest practicable area for the minimum period necessary for such 

purposes.

b. Wilderness Study Areas. In addition to formally designated wilderness areas, 

FLPMA directed the Bureau to inventory and study its roadless areas for wilderness 

characteristics that often also contain culturally sensitive traditional use areas and 

sacred sites. To be designated as a WSA, an area had to have the following 

characteristics—

 Size—roadless areas of at least 5,000 acres of public lands or of a manageable 

size;

 Naturalness—generally appears to have been affected primarily by the forces

of nature; and

 Opportunities—provides outstanding opportunities for solitude or primitive 

and unconfined types of recreation.

In addition, WSAs often have special qualities such as ecological, geological, 

educational, historical, scientific and scenic values.
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MS-6330, Management of Wilderness Study Areas, states that it is BLM’s policy to 

“develop and maintain relationships with ... tribal governments ... regarding the 

stewardship of WSAs.”

5. National Conservation Lands Science Program. The BLM’s National Conservation 

Lands comprise a natural and cultural scientific laboratory that attracts scientists from 

around the world. Indeed, several National Conservation Lands components have been 

designated by Congress or the President because of their varied scientific objects and 

values of interest. Many of the scientific research projects in National Conservation 

Lands are conducted through partnerships with tribes as well as scientists and scientific 

organizations, including universities, government agencies, special-focus groups, and 

nongovernmental organizations. (A copy of the 2007 National Conservation Lands 

Science Strategy can be found on the BLM website.)
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CHAPTER VI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

FIRE MANAGEMENT PROGRAM

A. Introduction

BLM involves tribes at the strategic and program planning levels through tribal consultation on 

LUPs/RMPs and preseason program coordination meetings as well as at the tactical programimplementation level during fuels program implementation planning, community assistance, 

prevention, and incident management. BLM uses compatible planning processes, funding 

mechanisms, training, qualification requirements, operational procedures, and public education 

programs for all fire management activities with other Federal agencies and tribes to the 

maximum extent possible. BLM is committed to standardization of policies and procedures 

among Federal agencies and tribes. Consistency of plans and operations provides a platform 

upon which Federal wildland fire management programs can cooperate across agency and 

government boundaries.

B. Legal Authorities for Tribal Consultation within the Fire Management Program

1. Reciprocal Fire Protection Act (1955) (42 U.S.C. 1856, 1856a). Under this act, 

Federal agencies charged with the duty of providing fire protection for any property of 

the United States are authorized to enter into a reciprocal agreement with any fire 

organization maintaining fire protection facilities in the vicinity of such property for 

mutual aid in furnishing fire protection for such property and for other property for which 

such organization normally provides fire protection.

2. Federal Grant and Cooperative Agreement Act (1977) (31 U.S.C. 6301–6308), 

Economy Act (1932) (31 U.S.C. 1535), and Federal Land Policy and Management 

Act. These acts authorize the BLM to enter into contracts, agreements, and award grants.

3. Timber Protection Act (1922) (16 U.S.C. 594). This act authorizes the Secretary of 

Interior to “protect and preserve, from fire ... timber owned by the United States upon the 

public lands ... Indian reservations, or other lands under the jurisdiction of the 

Department of Interior.”

4. Alaska Native Claims Settlement Act (1971) (43 U.S.C. 1601–1624). Section 1620(e) 

states:

“Real property interests conveyed pursuant to this chapter to a Native individual, Native group, 

corporation organized under section 1613(h)(3) of this title, or Village or Regional Corporation

shall continue to be regarded as public lands. . . . So long as there are no substantial revenues 

from such lands they shall continue to receive wildland fire protection services from the United 

States at no cost.”

5. Departmental Manual 620, Wildland Fire Management, Chapter 2, General Policy 

and Procedures—Alaska (620 DM 2). Section 2.4 states:
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“BLM will maintain and operate the Department of the Interior wildland fire suppression 

organization in Alaska with the primary intention of providing cost-effective suppression services 

and minimizing unnecessary duplication of suppression systems for Department of the Interior 

agencies. BLM will also provide consistency in State and Native wildland fire relationships and

provide statewide mobility of wildland fire resources. BLM is authorized to provide safe, costeffective emergency wildland fire suppression services in support of land, natural and cultural 

RMPs on Department of the Interior administered land and on those lands that require protection 

under the Alaska Native Claims Settlement Act, as amended (43 U.S.C. 1620(e)), herein after 

referred to as Native Land. BLM will execute these services within the framework of approved 

fire management plans or within the mutually agreed upon standards established by the respective 

land managers/owners.

“Nothing herein relieves agency administrators in the Interior bureaus of the management 

responsibility and accountability for activities occurring on their respective lands.

“Wildland fire suppression and other fire management activities provided on Native Lands under 

the authority of the ANCSA, as amended (43 U.S.C. 1620(e)), will consider Native land 

managers on an equal basis with Federal land managers.

“Each bureau will continue to use its delegated authority for application of wildland fire 

management activities such as planning, education and prevention, use of prescribed fire, 

establishing emergency suppression strategies and setting emergency suppression priorities for 

the wildland fire suppression organization on respective bureau lands.”

6. Tribal Forest Protection Act (2004) (25 U.S.C. 3115a). This law authorizes the 

Secretary of Interior to give special consideration to tribally proposed stewardship 

contracting or other projects on BLM land bordering or adjacent to Indian trust land to 

protect the Indian trust resources from fire, disease, or other threat coming off of BLM 

land.

C. Importance of LUP/RMP for Fire Planning and Coordination with Indian Tribes

The LUP (see Chapter IV, Guidance for Consultation in Planning and Decision Support) sets the 

objectives for the use and desired condition of the various public lands, including fire 

management objectives and the fire management program in the designated area. Response to 

fires is guided by the strategies and objectives outlined in the RMP.

The BLM must consult with tribes during the LUP/RMP process and during development of 

programmatic emergency stabilization and burned area rehabilitation plans, hazardous fuels 

treatment projects, and fire management plans that implement decisions beyond those of the 

LUP/RMP. BLM should seize the opportunity to consult with tribes early during the NEPA 

development process to adjust planning decisions to meet tribal needs of access, resource 

utilization, restoration of vegetation communities containing culturally important plants, and 

protection of sacred sites.
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D. Areas of Responsibility

The BLM has the legal authority to protect the lands under its management and administration 

from the adverse effects of wildfire. This can be done by the agency itself or through contracts 

and agreements with other protection organizations.

E. Program Operation Standards

During initial action, all agencies (Federal, State, local, and tribal) accept each other’s standards. 

Once jurisdiction is clearly established, then the standards of the agency(s) with jurisdiction 

prevail. Prior to the fire season, Federal agencies must meet with their State, local, and tribal 

agency partners to facilitate an understanding of the qualification/certification standards that will 

apply to the use of local non-Federal firefighters during initial action on fires on lands under the 

jurisdiction of a Federal agency. The National Wildfire Coordinating Group position standards 

(as identified in Product Management System (PMS) 310-1, Wildland Fire Qualification System 

Guide) are considered the industry standard and are essential for safe operations in the wildland 

fire environment. Failure to meet the standards would prohibit tribal firefighters from 

participation in off-reservation fire activities beyond initial attack.

F. Cohesive Strategy

The 2009 Federal Land Assistance, Management and Enhancement (FLAME) Act (43 U.S.C. 

1748a) directed the Departments of Agriculture and Interior to develop a cohesive wildland fire 

management strategy. The cohesive strategy takes a holistic view of fire on the landscape—

across jurisdictions in an “all hands all lands” approach to create fire adapted communities, 

restore and maintain landscapes, and respond to wildfires. This approach supports an inclusive 

intergovernmental approach to “safely and effectively extinguish fire where allowable; manage 

our natural resources; and as a Nation, live with wildland fire.”

G. Partnerships with Tribes

Developing and updating agreements with tribes can clarify jurisdictional interrelationships and 

define roles and responsibilities among BLM and tribal fire protection entities. These 

agreements may be used to coordinate preparedness needs across the landscape and gain 

operational efficiencies to meet peak operational demands and achieve economic efficiencies in 

fuels management, preparedness, and prevention.

H. Use of 638 Compacts or Self-Governance Contracts in the Fire Program

In the lower 48 States, the BIA, through treaties and Executive orders, has the responsibility to 

protect tribal lands that are held in trust or restricted status but not on intermingled fee lands

(private land owned and intermingled with tribal trust and restricted fee lands) unless the BIA

establishes MOU with local protection districts. Protection responsibility also includes allotted 

lands held by individual tribal members. Protection responsibility includes wildland fire 

management, wildfire suppression and external structure protection.
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Because the BIA has responsibility to protect tribal lands in the lower 48 States, the use of 

638 compacts or self-governance contracts for fire management by the BLM does not occur. 

However, for Native lands in Alaska, Secretarial Order 3077 (March 17, 1982) recognized the 

economic and operational benefits of continuing suppression responsibilities by the BLM for all 

Native Lands conveyed under ANCSA and DOI-managed lands including Native allotments. 

Therefore, Indian tribes in Alaska can compact or contract to implement fire program functions 

for Native lands for which the BLM otherwise would have responsibility.

For Native lands in Alaska there are three basic situations:

 BLM Management: The BLM manages and implements the entire wildfire program using 

primarily BLM employees.

 Contract Program: An individual tribe may contract for all or part of the program. They 

can either run the program themselves or contract with the private sector. (This is 

currently the case in Alaska where the Alaska Fire Service has entered into an annual 

funding agreement with local tribal entities to provide wildland fire training of 

emergency fire crews).

 Compact Program: A compact tribe accepts funding from the BLM to take full control of 

the program. The BLM withdraws its personnel leaving only a single BLM employee

(either a superintendent or trust officer). In this case, the tribe only has to follow Federal

law, but not necessarily BLM policies. The BIA retains the responsibility to sign 

delegations of authority to incident management teams.
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CHAPTER VII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

FOREST AND WOODLANDS PROGRAM

A. Overview

1. Oregon and California Grant Lands and the Public Domain Forestry Programs. 

The BLM manages almost 67 million acres of forest and woodlands, comprised of 

Oregon and California grant lands in western Oregon and public domain (PD) forest 

across the West. The PD forest land covers over 32 million acres across the 13 Western 

States and over 33 million acres in Alaska. The O&C Act directs the BLM to manage the 

2.3 million acres of productive commercial timberlands for permanent forest production 

in conformance with the principle of sustained yield for the purpose of providing a 

permanent source of timber supply, protecting watersheds, regulating stream flow, 

contributing to the economic stability of local communities and industries, and providing 

recreational opportunities. The FLPMA directs BLM to apply principles of multiple-use 

and a sustained yield of resources in the management of PD lands. Management of the 

PD lands focuses on restoring forest health and improving wildlife habitat, reducing the 

risk of catastrophic wildfire, and providing a variety of special forest products including 

firewood to local communities.

2. Use of Public Lands Forest Products by Tribes and Pueblos. Most traditional tribal 

lands or aboriginal territories inhabited by the many tribes were ceded to the United 

States through treaty and are now within public land boundaries. Within these aboriginal 

or traditional territories, the tribal members were able to obtain resources needed to

support their livelihoods and sustenance.

A variety of forest products are important to tribes, including firewood for cooking,

heating, and ceremonial use as well as nuts, berries, poles, and traditional vegetative 

materials for subsistence and ceremonial needs. A number of tribal communities also 

have forest products businesses and may have an interest in saw timber or commercial 

firewood from public lands. Tribal communities in many areas of the west rely on BLM 

forest products to sustain their traditions and meet their cultural needs. For many, 

firewood is the primary source of heat and is used for cooking in many areas where 

propane, liquefied natural gas or other petroleum fuels are unavailable or cost prohibitive. 

In the Eastern Navajo Chapters of New Mexico, for example, firewood is the primary 

source of heat for 90 percent of tribal members with 60 percent of this firewood being 

harvested primarily by permit from BLM lands.

The BLM policy is to accommodate, to the greatest extent practicable, traditional use of 

public lands by Native Americans and to support traditional gathering of culturally 

important plants, timber, and forest products. Additionally, economic development 

opportunities may exist involving forest products, including merchantable timber and 

biomass utilization. For many tribal communities, access to forest products and 

involvement in forest planning efforts are important to maintaining traditional gathering 

and ceremonial use of cultural utilized plants, timber, and other forest products.
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B. Legal Authorities

1. Sale of Timber and Vegetative Materials. Providing forest products to members of 

tribal communities is subject to existing statutes and regulations concerning disposal of 

forest products. Authority to sell or otherwise dispose of forest and vegetative products,

including timber, is found in the 1947 Materials Act (30 U.S.C. 601 et seq.); the current 

policy for the sale of vegetative resources is found at 43 CFR 5420.0-6. This policy 

states that all timber or other vegetative resources to be sold or removed shall be 

appraised and in no case shall be sold at less than the appraised value. In addition, 43 

CFR 5462.2 prohibits cutting, removing, or otherwise damaging any timber, tree, or other 

vegetative resource except authorized by a forest product sale, contract, permit, or 

Federal law or regulation.

2. Non-sale Disposal and Free Use With Permit. Current policies for the issuance of freeuse permits for vegetative resources are found at 43 CFR 5500 and 5510, MS-5500, and 

in 43 CFR 8365.1-5. The 1955 Multiple Surface Use Act (30 U.S.C. 611) gives the 

Secretary the ability to dispose of certain minerals and certain vegetative products, 

timber, and forest products without charge. The law states that any Federal, State, or 

Territorial agency, unit, or subdivision, including municipalities, or any association or 

corporation not organized for profit, may take and remove, without charge, materials and 

resources subject to this act, for use other than for commercial or industrial purposes or 

resale. However, limitations for Non-sale or Free-Use permits are specified by current 

Federal regulations:

 Free-use permits must not be issued when the applicant owns or controls an 

adequate supply of timber or vegetative materials to meet their needs 

(43 CFR 5511.2-1).

 Free-use permits must not be issued to individuals, outside of Alaska, except 

qualified mining claimants, and non-sale disposals must be for the applicants own 

use and may not be bartered or sold or used for commercial or industrial purposes 

or resale (43 CFR 5510.0-3(b)).

 Free-use permits issued to a nonprofit association or corporation may not provide 

for the disposition of more than $100 worth of timber or other vegetative 

materials during any one calendar year (43 CFR 5511.307).

3. Non-sale Disposal and Free Use—No Permit (free or otherwise). No permit is 

required for the collection of limited amounts of vegetative products by members of the 

public in accordance with 43 CFR 8365.1-5. Commonly available renewable resources

such as flowers, berries, nuts, seeds, cones, and leaves may be collected for 

noncommercial uses. This language could encompass a wide range of vegetative 

resources of concern to tribes.
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4. Tribal Forest Protection Act. Passed in response to wildfires crossing onto tribal lands 

from Federal lands, the act applies to national forest and BLM lands. The statute allows 

tribes to submit a request to enter into contracts and agreements with the BLM to conduct 

projects aimed at reducing threats from Federal lands and protecting tribal forests. The 

BLM must respond to a request within 120 days, either supporting and initiating the 

project, or denying the project with an explanation but offering a schedule of consultation 

with the Indian tribe for the purpose of developing a strategy for protecting the Indian 

forest land or rangeland of the Indian tribe and interests of the Indian tribe in Federal

land.

Proposed projects under the Tribal Forest Protection Act entail work on Federal land that 

borders or is adjacent to tribal lands. Activities include treatments to reduce fire danger 

and other threats to tribal forests and communities as well as other land restoration 

activities. In entering into an agreement or contract under Public Law 108-278, including 

stewardship contracts, the BLM may give specific consideration in the procurement 

process to tribally related factors such as historical and cultural affiliation with the land, 

treaty rights, agency/tribal working relationships, landscape features, and others found in 

the act (see 25 USC 3115a, section 2(e)(2)A-H). The Tribal Forest Protection Act is 

important particularly for BLM lands that abut reservation boundaries. Developing an 

agreement or stewardship contract for managing forestlands in these areas is highly 

encouraged.

C. Treaties and Forest Products

A variety of treaties exist with tribes located primarily in the northern Rockies and Pacific 

Northwest that not only established reservations for the exclusive use of the tribes, but also

reserved their right to continue traditional activities in aboriginal territories beyond these 

reserved areas. Some tribes or their members have retained rights to hunt, fish, and/or gather 

other resources on ceded lands, even if these lands are no longer within Indian Country. A 

number of treaties and the ANILCA contain language reserving the right to hunt, fish, and 

conduct other traditional activities such as harvesting forest and vegetative products on lands off 

of the reservations.

Questions arise concerning the issue of whether valid treaty rights in a Senate-ratified statute 

supersede the Code of Federal Regulations concerning off-reservation lands. For example, the 

treaty between the United States and the Bannock and Shoshone of the Fort Hall Reservation 

from 1900 states that “so long as any of the lands ceded ... under this treaty remain part of the 

public domain, Indians belonging to the above mentioned tribes ... shall have the right, without 

any charge therefore, to cut timber for their own use, but not for resale.” So, under the treaty, 

tribal members can cut timber, not just collect forest products, without having to pay. On the one 

hand, the Federal regulations do not allow for free-use permits to be issued to individuals outside 

of Alaska. On the other hand, the treaty is a law and thus carries greater legal weight than the 

regulations, given Federal Government’s trust responsibility to recognize treaties and honor their 

exercise. Secretarial Order 3335, Reaffirmation of the Federal Trust Responsibility, states that 

the trust responsibility can often be best achieved “through legislative authorization.” Future 
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legislative authorizations could address issues related to forest products sale and disposal. 

However, until then, offices and States will have to balance trust responsibility with compliance 

with applicable Federal regulations.

The Federal regulations guiding BLM decisions regarding the sale or non-sale disposal of forest 

products establish restrictions on the issuance of free-use permits. BLM state offices have the 

discretion to establish price guidelines for the sale of vegetative materials and forest products of 

interest to tribes that are not cost prohibitive. For example, willows used by a number of 

different tribes for basket weaving cannot be provided free of charge if they will be used for 

commercial purposes such as selling baskets and do require an appraisal based on market 

conditions. However, the commercial market may be limited for some products and the 

appraised value may be low. Another option for non-sale disposal of forest products is to 

develop stewardship projects with tribal communities. A number of legal instruments exist to 

allow partnerships with tribal entities such as financial assistance agreements, stewardship 

contracts, agreements and forest products sales, and service contracts. Executing stewardship 

contracting with interested tribes provides an alternative solution to the tribal treaty/forest 

products sale regulation conundrum.

D. Stewardship Contracting

Stewardship contracting authority, originally granted under the Appropriations Bill of 1999 

(Pub. L. 105-277, section 347), and amended by the Omnibus Appropriations Bill of 2003 

(Pub. L. 08-7, section 323), was permanently authorized by Section 8205 of the 2014

Agricultural Act (7 U.S.C. 8702) (i.e., Farm Bill). Using stewardship contracts and agreements

can be effective in meeting the forest products needs of tribes and pueblos while developing 

economic development projects through collaborative forest management. The BLM’s primary 

objective for its stewardship contracting program is to implement projects that increase the 

health and resiliency of both public lands and local communities. Stewardship often involves

exchanging goods for services, where a partner conducts service work for the BLM and in return 

can acquire forest products for their use. Stewardship contracting provides the authority to 

utilize the value of forest products to offset the cost of service work within a single contract. If a 

tribe or pueblo has a forestry program and can provide or develop a forestry crew, stewardship 

contracting can be an important tool for both engaging tribal communities in public lands forest 

management as well as for economic development within the community.

Meeting local and rural community needs is a requirement of stewardship contracting and may 

be identified through collaboration. The level of collaboration should match the size, 

complexity, duration and level of public interest in the stewardship project. Existing 

collaborative relationships can be used, thus streamlining the collaborative process. 

Collaborative processes allow and provide opportunities for diverse interests and stakeholders to 

play an active and meaningful role in stewardship projects.
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The primary objective of a stewardship contracting project is to achieve one or more of the land 

management goals that meet local and rural community needs. These goals as identified in the 

authorizing legislation, may include, but are not limited to—

 Road and trail maintenance or obliteration for improved water quality; 

 Soil productivity, habitat for wildlife and fisheries, or other resource values; 

 Setting prescribed fires to improve composition, structure, condition, and health of stands 

or to improve wildlife habitat; 

 Removing vegetation or other activities to promote healthy forest stands, reduce fire 

hazards or achieve other land management objectives; 

 Watershed restoration and maintenance; 

 Restoration and maintenance of wildlife and fish habitat; and

 Control of noxious and exotic weeds and reestablishing native plant species.

Additional guidance can be found in End Results, Stewardship Project Guidance, Version 3.

Establishment of Consultation Protocols through Agreements, Contracts, and Other Instruments 

of Collaboration

1. Build a Relationship with Tribal Foresters and Natural Resource Staff. Regular or 

annual meetings or workshops between BLM and tribal forestry staff could potentially be 

done at a regional level as well as a State or local level. Many tribal communities have 

tribal forestry programs either as a stand-alone agency or as part of a natural resources 

department under the tribal government or tribal corporation. Some tribal forestry 

programs have developed under 638 self-rule authority and may be located under a 

different department in the tribal organization (i.e., the Ramah Navajo Chapter Forestry 

Program is located under the chapter school board). With government-to-government 

consultation between tribal leaders and BLM line officers, ample opportunity exists for 

staff-to-staff consultation and collaboration between BLM foresters and their tribal 

counterparts.

2. Meetings to Discuss Proposed Forest Management Projects. Opportunities for 

collaboration can be initiated between BLM foresters and tribal entities staff. If there is 

sufficient interest or a number of outstanding issues to discuss, quarterly forest 

management coordination meetings may be scheduled. Make sure to check the cultural 

calendar with the tribal communities to avoid conflict with feasts, festivals or other 

cultural events. An MOU may be useful to create a more structured process for 

consulting on forest management issues. 

3. Agreements. Although not used to transfer funds or pay for service work, an MOU can 

describe the process for meeting with tribal forestry officials on a regular basis. For 

example, the MOU can state the BLM will schedule meetings, transmit a proposed 

agenda, and circulate resulting meeting notes within certain timeframes. An MOU can 
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also have a list of projects, issues, or ongoing opportunities for consultation, and the list 

should be regularly updated. For example, an MOU between the BLM and tribal 

community could describe a process for setting regular meetings to discuss ongoing 

issues such as access to forest products, protection for ceremonial use vegetation 

collection areas, and opportunities for economic development such as developing a 

stewardship agreement. 

Developing an MOU also gives a chance for the BLM staff to work with their tribal 

counterparts and offers a glimpse into their internal process. For collaborative forest 

restoration and management activities, BLM staff may need other instruments that allow 

for the transfer of funds such as financial assistance agreements, service contracts, or 

intergovernmental agreements.
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CHAPTER VIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO 

THE RANGELAND MANAGEMENT PROGRAM

A. Introduction

This chapter explains how managers and staff carry out tribal consultation and coordination 

when conducting land health evaluations, developing allotment or grazing management plans, 

modifying permitted livestock grazing use, and planning range improvements and vegetation 

treatments. Consultation is part of program implementation and management and thus supported 

by appropriate rangeland subactivities. The BLM must notify relevant tribal contacts when 

identifying the watersheds, allotment, or permits that are subject to grazing management review. 

Appropriate notification is described in Chapter III of this handbook.

B. Consulting During Monitoring and Evaluation Processes

Range health monitoring processes can include establishing monitoring sites and identifying data 

collection methods, both quantitative and qualitative. Tribes may be interested in collecting or 

contributing data that informs the evaluation process. Therefore, BLM should provide 

opportunities for tribes to be involved in developing a monitoring plan for grazing allotments or 

watersheds. Such monitoring plans should include a list of resource objectives, the methods for 

data collection, the sites where data will be collected, and the responsible parties for collecting 

the data. The BLM also should notify relevant tribes of the areas where evaluation reports, 

including land health evaluations, are planned each year and provide the tribe an opportunity to 

review, comment, and give input during preparation of particular reports in areas of interest to 

the tribe.

C. Consulting During Grazing Permit Renewal and Other Vegetation Management 

Activities

The BLM should notify tribal contacts when initiating NEPA processes for range improvements, 

vegetation treatments, and grazing management. The BLM should provide tribes an opportunity 

to participate in the development of allotment management plans (or their equivalent) and other 

alternatives for analysis in NEPA documents. Individual tribal members that have a grazing 

permit or lease should be consulted as a permittee, separately from tribal consultation unless the 

tribe designates that member to represent them. The BLM should identify the appropriate tribes 

at the beginning of each year which areas are expected to be addressed, either through permit 

renewal or management changes necessary to address grazing management or land health issues.

The BLM should notify tribes when it is planning range improvement structures or vegetation 

treatments. Changes in the physical environment as well as timing of the activity involved have 

potential to affect the properties of religious or cultural sites and activities. Tribes may also 

identify seed sources or species that can be planted/seeded to restore cultural uses.
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D. How Types of Projects Requiring Tribal Consultation Are Defined

Individual BLM protocols, authorized under the BLM’s national Programmatic Agreement

(PA)(see Chapter X), may specify which types of range projects do and do not require tribal 

consultation under the NHPA. For example, in Wyoming, no consultation with the SHPO or 

tribes is required for grazing lease renewals and transfers in which the type and numbers of 

animals and seasons of use do not change. In addition, states may not need to consult with tribes 

or their SHPOs for small range improvements that have minimal potential to affect heritage

resources, such as short fence lines, small stock ponds, or the placement of a stock tank.

It may be cumbersome to the tribes and the BLM to consult in all cases, especially where 

scattered BLM lands and areas with extensive split estate contain numerous, small, and 

discontinuous grazing leases. BLM offices should consult with tribes to define which types of 

projects tribes wish to consult on under NEPA and NHPA. 
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CHAPTER IX. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

FISH AND WILDLIFE PROGRAM

A. Introduction

The BLM and Indian tribes have a common goal of conserving fish and wildlife species, their

habitats, and the ecosystems upon which they depend. A number of tribes retained offreservation treaty or other reserved rights which have a large focus on hunting and usual and 

accustomed fishing locations. Therefore, the health of habitats on public lands that support 

culturally sensitive species are critically important. As a result, tribes often manage and 

influence some of the most important fish and wildlife habitats both on and off reservations. 

Subsequently, the Federal Government and the BLM have distinct and unique obligations as well 

as common interests with tribes to effectively manage and make best decisions toward our shared 

resources and trust responsibilities.

B. Collaborative Conservation Approach

While the major components of this handbook are aimed at cultivating and maintaining effective 

partnerships between the BLM and Indian tribal governments, a prominent common goal is to 

effect long-term conservation of fish and wildlife resources. Tribes and the BLM share a 

common goal of ensuring responsible and sustainable management of natural resources and 

ecosystems, maintaining healthy populations of plant and animal species, and protecting 

sensitive species. (Commitments to conserve priority habitats for the greater sage-grouse 

documented within the Records of Decision and approved RMP amendments for both the Great 

Basin and Rocky Mountain Regions released in September of 2015 are recent examples of 

successful collaborative conservation between federal agencies, states, and tribes).

Tribes have authority for self-government, including the management of fish and wildlife 

resources within the boundaries of reservations. Tribes usually have the most intimate 

knowledge of species locations, population health, and management requirements for species 

occurring on tribal lands. Tribal fish and game departments may also regulate off-reservation 

treaty rights to hunt by issuing tribal members off-reservation hunting permits (the Shoshone 

Bannock Tribes for example). The BLM also recognizes that Tribal management of fish, 

wildlife, plants, and other natural resources, while in accordance with many of the same 

principles as Federal management of these resources, is at times guided by different goals and 

concerns than those of the BLM. Efforts should be made to obtain and incorporate tribal natural 

resources development plans into BLM integrated resource management strategies that protect 

fish and wildlife and other natural resources.

BLM should acknowledge that the tribes will usually be the primary managers of fish and 

wildlife resources on tribal lands and will maintain and hold records concerning fish and wildlife 

species and management. BLM should also recognize that tribes may have specific, relevant 

understanding of natural resources within their purview based on traditional knowledge 

accumulated over a long period of time. Information collected by a tribe is not subject to Federal 

Freedom of Information Act requests, provided that the information was collected using tribal 
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funds and is maintained with the tribe. In cases where tribal proprietary or confidential cultural 

or religious information is not compromised, BLM should request that tribes share this 

information with the BLM. The BLM has a trust responsibility to assist the tribe in caring for 

fish, wildlife, plants, and their habitats, and the BLM has much expertise in the area of fish and 

wildlife habitat management. While tribes may be able to contribute important traditional 

ecological knowledge to the BLM, the BLM can provide valuable and important technical 

assistance to tribes who seek means to manage fish and wildlife for conservation and sustainable 

use. These can include candidate, proposed, listed, and non-status species.

C. Subsistence Management

When BLM field offices prepare habitat management plans or improvement projects, they must 

consult with Indian tribes and ensure, to the extent possible, that proposed BLM activities and 

conservation measures will not hinder the gathering of plants or the tribal taking of fish at usual 

and accustomed locations where specifically reserved by treaty or impede other reserved rights 

and traditional uses involving wildlife on public lands. Tribal concerns should also be 

considered when developing management and recovery plans for species valued for 

nonsubsistence reasons.

Title VIII of the ANILCA created a Federal responsibility to manage fish and wildlife resources 

needed for subsistence on Federal public lands for certain rural Alaska residents, including 

Native Americans. As part of the Federal Subsistence Board, the BLM is uniquely responsible 

for the cooperative management of subsistence resources and uses on BLM lands in Alaska, 

including fresh waters that run in or are adjacent to BLM lands.

D. Endangered Species and Management of Critical Habitat

On June 5, 1997, the Secretaries of the Interior and Commerce jointly issued Secretarial Order 

3206, American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered 

Species Act. This order not only addressed consultation requirements specific to the Endangered 

Species Act, but also provided guidance and direction about the department-wide Federal-tribal 

relationship and its relationship to tribal reserved rights, and clarified agency trust 

responsibilities. The order provided a policy framework for establishing and maintaining 

effective working relationships and mutual partnerships to promote the conservation of fish and 

wildlife species and the health of ecosystems on which they depend. The Secretarial order 

directs that responsibilities under the Endangered Species Act be carried out in a manner that 

harmonizes trust responsibilities, tribal limited sovereignty, and statutory missions such that 

tribes do not bear a disproportionate burden for the conservation of listed species.

Secretarial Order 3206 directed all bureau and agencies within the DOI to:

 Work directly with and seek to establish effective government-to-government working 

relationships with tribes to promote and protect the health of ecosystems. Tribes are to be 

afforded adequate opportunities to participate in data collection, consensus seeking, and 

associated processes.
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 Recognize that tribal lands are not subject to the same controls as Federal public lands.

 Take affirmative steps to assist tribes in developing and expanding tribal programs that 

promote the health of ecosystems upon which sensitive species depend, including 

cooperative identification of appropriate management measures to address concerns for 

such species and their habitats. 

 Offer and provide scientific and technical assistance and information as may be available 

for the development of tribal conservation and management plans to promote 

maintenance, restoration, enhancement, and health of ecosystems.

 Recognize that Indian tribes are appropriate governmental entities to manage their lands 

and tribal trust resources and give deference to tribal conservation and management plans 

for tribal trust resources that adequately address BLM’s conservation needs for fish and 

wildlife species. Government-to-government consultations should be conducted to 

discuss the extent to which BLM and tribal RMPs commonly incorporate actions that 

address the conservation needs of listed species.

 Be sensitive to Indian culture, religion, and spirituality and adequately take into 

consideration the impacts of BLM actions and policies regarding tribal use of fish and 

wildlife species for cultural and religious purposes.

 Recognize the need for and make available information related to tribal fish and wildlife 

resources, facilitate the mutual exchange of information and strive to protect sensitive 

tribal information from disclosure. Effort should be made to promptly notify and consult 

with affected tribes regarding all requests for tribal information.

E. Disruption and Removal of Animal Parts 

The U.S. Fish and Wildlife Service is delegated custodial process responsibility for processing 

and distributing certain animal parts, such as eagle feathers, for recognized religious, ceremonial, 

and cultural purposes in accordance with Federal laws. BLM offices must coordinate with the 

appropriate U.S. Fish and Wildlife Service office regarding animal part availability and the need 

to conduct required scientific and law enforcement investigations. In addition, fish and wildlife 

animals or body parts should not be relocated or removed from any Tribal land except by explicit 

prior written authorization from the tribe. This also includes handling or distributing animal 

parts from areas where there are found.

F. Confidential Biological Information

The tribe has authority to manage access to and to safeguard information about tribal lands, 

resources, and ecosystems, and their associated flora and fauna. Information obtained from tribal 

governments and information generated by the BLM through technical assistance to tribal 

governments must not be shared or released without the tribe’s consent or as required by law. It 

is ideal and desirable for both tribes and the BLM to establish a protocol to facilitate sharing of 

information while ensuring that tribal proprietary, commercial, and other confidential 
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information is protected. There are several types of confidential biological information, as 

detailed below.

1. Traditional Ecological Knowledge. This term is used to describe the knowledge held 

by indigenous cultures about their immediate environment and the cultural practices that 

build on that knowledge. Traditional ecological knowledge can include an intimate and 

detailed knowledge of plants, animals, and natural phenomena; the development and use 

of appropriate technologies for hunting, fishing, trapping, agriculture, and forestry; and a 

holistic knowledge.

2. Confidential Tribal Information. Confidential Tribal Information means all 

information that is religious, cultural, ceremonial, proprietary, financial, technical, 

commercial, privileged, sensitive, or confidential in nature or content or that relates to 

natural resources, heritage resources, or resource management practices of the tribe. 

Information can mean any verbal, visual, pictorial, specimen, graphic, electronically

stored, printed, recorded, or written material acquired from the tribe or other person or 

entity or obtained in any other way. Confidential Tribal information should not be used 

in any way that is detrimental to or that could result in a competitive disadvantage to the 

tribe. The BLM should provide an opportunity for the tribe to review and consult on 

drafts of any documents (e.g., biological opinions) containing confidential tribal fish and 

wildlife information prior to its disclosure or completion as a final document.

Examples of potentially confidential biological information—

 Biological reports, summaries, data, maps, photographs;

 Lists of species occurring on tribal lands;

 Habitat or ecosystem conditions on tribal lands;

 Water quality, quantity, and inventories of the tribe’s water resources, including 

surface water and groundwater;

 Commercial activities of the tribe;

 Natural resource management practices or plans of the tribe;

 Location and nature of fish and wildlife sites of cultural significance to the tribe; 

and

 Biological information gathered on tribal lands.

G. Land Access and Cross-Boundary Field Activities

The BLM should access tribal lands to collect biological and habitat information only upon 

written authorization by the tribe and should be accompanied by an authorized representative 

designated by the tribe. The tribes and the BLM should each designate a primary contact person 

to coordinate any authorized field activities and information requests.
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H. Law Enforcement

A federally recognized Indian tribe has the inherent authority to develop codes and regulations to 

protect natural resources on its tribal lands. Tribes also have authority to develop and enter into 

agreements with other agencies and entities in order to promote, protect, enhance, and pursue 

effective management of its natural resources. It may be appropriate for a tribe and the BLM to 

enter into a memorandum of agreement (MOA) for law enforcement to discuss and enforce 

enumerated Federal laws that address the protection and conservation of fish, wildlife and natural 

resources within the respective jurisdiction.
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CHAPTER X. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

CULTURAL HERITAGE PROGRAM

A. Introduction

This chapter explains how BLM managers and staff can carry out tribal consultation in 

accordance with legal requirements contained within historic preservation, archaeological 

resource protection, and related heritage resource authorities.

B. Consulting Under Heritage Resources Authorities

Since passage of several bills by Congress protecting selected Native American sites in the 

American Southwest in the late 19th century, the legislative and executive branches of 

government have passed or issued a number of laws and Executive and Secretarial orders 

addressing Native American cultural heritage issues. They have steadily increased Federal

agency responsibilities, including the BLM’s, for taking into account Native American concerns 

in their decision-making processes and management goals. Several general authorities were 

addressed in Chapter IV, Guidance for Tribal Consultation in Planning and Decision Support. 

This chapter describes three statutes and their regulations that more specifically address cultural 

heritage issues and the interaction of these authorities with those described elsewhere in this 

handbook. Line officers with the assistance of heritage resource specialists must give tribal 

concerns full consideration according to the legal requirements.

1. National Historic Preservation Act. Requirements for tribal consultation come from 

Sections 106 and 101(d)(6) of this law (54 U.S.C. 306108 and 54 U.S.C. 302706).

Consultation for NHPA Section 106 Purposes

BLM consults with— Purpose of consultation is—

Elected officials or Tribal 

representative(s) whom the tribal 

government has designated for this 

purpose 

● To identify tribally significant religious or 

cultural properties that may be eligible for the 

National Register of Historic Places

● To understand tribal concerns sufficiently to 

take into account the effects that a proposed 

Federal undertaking might have on National 

Register eligible properties

Figure X-1 Tribal consultation for purposes of Section 106 of the National 

Historic Preservation Act.

Generally speaking, the purpose of consulting with tribes under the NHPA during land 

use and project planning is to call for meaningful tribal participation in BLM’s efforts 

to—

 Identify places of traditional cultural or religious importance and other tribally 

valued historic resource sites and locations,
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 Evaluate the significance of those places in relation to the NRHP criteria,

 Assess potential effects on places of traditional cultural or religious importance 

from any pending land use planning decision or undertaking, and

 Determine appropriate mitigation measures to avoid or reduce adverse effects of 

planned special designations, land use allocations, and management prescriptions.

Section 106 of the NHPA requires Federal agencies to identify and consider potential 

effects that their undertakings might have on significant historic properties. Specific 

provisions to consult with Indian tribes during Section 106 compliance were added to the 

act through amendments in 1992. The NHPA requires the BLM to identify the area of 

potential effects associated with a federal undertaking, which in some circumstances may 

extend beyond federal land. For example, a transmission right-of-way application that 

proposes to use public land and non-federal land and the BLM has determined that it has 

sufficient control and responsibility over the proposal to federalize review of the entire 

project. In such circumstances, the BLM’s obligation under NHPA to consider the 

potential effects on historic properties would cover the entire project and would include 

an obligation to consult with Indian tribes about potential effects on places of traditional 

or religious importance. The BLM should contact the Solicitor’s Office if there are any 

questions regarding whether the BLM must review an entire project that occurs on public 

land and non-public land, or more generally, if there are questions regarding the extent of 

the BLM’s review under the NHPA for a proposed federal undertaking.

54 U.S.C. 302706 of the National Historic Preservation Act

 Specifies that the traditional or historical importance an Indian tribe attaches to 

a particular place may make the place eligible for the National Register of 

Historic Places (i.e., a “historic property” that is significant for purposes of the 

act); and

 Directs agencies carrying out Section 106 compliance to consult with any Indian 

tribe whose tradition or history may contribute to the National Register 

eligibility of a potentially affected property. 

_______________

 National Register eligibility is determined by evaluating a candidate property’s

characteristics against the National Register criteria at 36 CFR 60.4. See BLM MS-8110. No 

property type enjoys categorical eligibility.

Figure X-2 Provisions of 54 U.S.C. 302706 of the National Historic Preservation 

Act.

Tribal consultation under the NHPA must be conducted on a government-to-government, 

basis, so it should start with the chief executive of the tribe. In practice, tribes may 

designate tribal staff members to communicate with BLM for this purpose. However, the 

BLM’s first contact, usually in the form of a letter, should be addressed to the chief 
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executive of the tribal government. Additional tribal staff to be contacted is often 

determined by formal or informal agreements between the tribe and the BLM.

In some cases, the BLM’s proposed or approved actions may occur on or affect historic 

properties on tribal lands. When that occurs, consultation must also include the THPO if 

the tribe has such an official approved by the NPS in accordance with Chapter 3027 of 

the NHPA, 54 U.S.C. 302702, to carry out Section 106 responsibilities on tribal lands. In 

these cases, consultation with tribes regarding determinations of eligibility, effect, and 

treatment must be carried out as specified at 36 CFR 800, rather than state protocols 

executed under the BLM’s National PA.

a. Traditional Cultural Properties and Eligibility. The NHPA and its implementing 

regulations (36 CFR 800) refer to “properties of traditional religious and cultural 

importance.” These are places that are prominent in a particular group’s cultural 

practices, beliefs, or values, when those practices, beliefs, or values—

 Are widely shared within the group,

 Have been passed down through the generations, and

 Have served a recognized role in maintaining the group’s cultural identity for 

at least 50 years.

The term “traditional cultural property” (TCP) is also used in reference to such valued 

places, but it is not found in law or regulation. It is a term introduced in an NPS

guidance document, National Register Bulletin 38, Guidelines for Evaluating and 

Documenting Traditional Cultural Properties. For tribes, TCPs have come to be 

widely used as synonymous with the phrase “properties of traditional religious and 

cultural importance.” For that reason, the two terms may be considered synonymous 

within this handbook.

Places of traditional religious or cultural importance to tribes may be archaeological 

sites (such as burials, rock art, eagle catching pits, stone effigies, kivas, shrines, and 

so on) but often are not. The traditional importance an Indian tribe ascribes to a place 

may make that place eligible for the National Register even if the place has no 

archaeological artifacts or features. 

Examples of TCPs that are listed within the NRHP for their association with Native 

Americans:

Kuchamaa (Tecate Peak), California. A sacred mountain associated with the 

Kumeyaay Indians. The peak marks a significant location for the acquisition of 

knowledge and power by shamans and remains a site of important rituals and rites.

Bassett Grove Ceremonial Grounds, Oklahoma. The grounds are the location of 

special ceremonies conducted by the Seneca and Cayuga Indians since 1832 and 
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reflect an intimate association between valued traditional practices and a single 

distinct location.

The BLM cannot know if a tribe ascribes traditional or cultural importance to a place 

unless it asks the tribe. These kinds of values are normally not articulated by 

archaeologists preparing inventory reports. Most BLM archaeologists are trained to 

identify and evaluate the scientific values of cultural properties, but identifying and 

evaluating the traditional religious or cultural values of a place requires consultation 

with the people or community who holds those values.

In consulting with tribes, four kinds of places may emerge as TCPs—

 Places that are still used and important to tribes,

 Places that are no longer used but are still remembered and are important to 

the tribe,

 Places that are lost from memory but are later discovered in the field and 

identified as important places that are described in the tribes’ oral histories, 

and

 Places that are lost from memory but are later discovered in the field and 

identified as important to the tribe even though they are not described in the 

tribes’ oral histories.

The third and fourth type of TCPs may be considered problematic since they were not 

previously known to the tribal community. In consultations with tribes, do not allow 

the label of TCP to become a contentious issue. The regulations at 36 CFR 

800.4(c)(1) state that, "The agency official shall acknowledge that Indian 

tribes...possess special expertise in assessing the eligibility of historic properties that 

may possess religious and cultural significance to them." Thus, tribal consultation is 

essential for determining the eligibility of TCPs. With deference to tribal views 

regarding these properties, the focus of consultation must be on gathering information 

to determine the spatial extent of the property to the extent feasible, the characterdefining features, and how it can best be managed to avoid or mitigate adverse effects 

that may result from the proposed undertaking.

Eligibility for the NRHP is a determination based on application of the NRHP criteria 

(36 CFR 60.4). Only those places that fulfill one or more of the NRHP criteria may 

be found eligible through consultation or nomination. No type of property is 

automatically, categorically eligible, including TCPs. All candidate NRHP-eligible 

properties must be evaluated against the criteria. Those that do not meet the 

eligibility standard are not subject to compliance with Section 106 of the NHPA. The 

BLM may still need to consider the impacts from the federal action on such resource 

even though it is ineligible, e.g., under NEPA.
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BLM-Specific Section 106 Compliance Procedures. In February 2012, the BLM 

Director, Chairman of the ACHP, and President of the National Conference of State 

Historic Preservation Officers approved an updated “Programmatic Agreement 

among the Bureau of Land Management, the Advisory Council on Historic 

Preservation, and the National Conference of State Historic Preservation Officers

Regarding the Manner in Which the BLM Will Meet Its Responsibilities Under the 

National Historic Preservation Act.” See MS 8100, Appendix 2. This PA provides an 

alternative approach for BLM's compliance with the requirements of the Section 106 

process, including reliance on its own cultural heritage program policies and 

procedures as found in the BLM 8100-series manuals and handbooks.

As part of implementing the PA, individual BLM state directors and SHPOs may

execute state-specific protocols that guide how they interact, exchange information, 

and complement one another’s capabilities. These two party protocols are executed 

in consultation with tribes and other interested parties. Procedures agreed to within 

individual state BLM-SHPO protocols may streamline and expedite the Section 106 

consultation process. (Tribal consultation obligations required by 36 CFR 800 remain 

in effect unless a BLM state negotiates and executes an agreement with a tribe that 

tailors tribal consultation procedures in a manner acceptable to both parties). In 

addition, the PA requires that state directors improve BLM-tribal relations by meeting 

with tribes to find ways to improve communication, including the opportunity to 

develop consultation procedures tailored to the needs of the individual BLM field 

office and specific tribe or tribes. 

The principles of the national PA and BLM-SHPO protocols, and the procedural 

details in the BLM 8100 series manuals and handbooks effectively replace the 

ACHP’s regulations (36 CFR 800) and associated guidance for routine compliance 

activities, except when they occur on tribal lands. For any decision occurring on 

tribal land and for more complex cases, the national PA or BLM-SHPO protocol 

would not apply and instead BLM must follow the provisions of the 36 CFR 800 

process or other alternative procedures under 36 CFR 800.14 that may be applicable. 

b. “Indian Tribe” is Specified in the Act. 54 U.S.C. 302701 states the purpose “to 

assist Indian tribes in preserving their particular historic properties.” 54 U.S.C. 

302706 directs agencies to weigh NRHP eligibility for properties important to an 

Indian tribe, and to consult with the Indian tribe in regard to properties found eligible. 

BLM is also obligated to consult with tribes regarding heritage resources even when 

sites or use areas are not found eligible to the NRHP.

“(A) Properties of traditional religious and cultural importance to an Indian tribe or Native 

Hawaiian organization may be determined to be eligible for inclusion on the National 

Register.
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“(B) In carrying out its responsibilities under section 106 of this Act, a Federal agency shall 

consult with any Indian tribe or Native Hawaiian organization that attaches religious and 

cultural significance to properties described in subparagraph (A).”

The NHPA is silent on coordination with non-recognized Indian groups and nonrecognized Alaska Native entities regarding properties of religious and cultural 

importance and Section 106. These groups would be addressed under NEPA and other 

authorities.

Consolidating Consultation Efforts. Under 54 U.S.C. 302706 and 54 U.S.C. 306102, 

tribal consultation may be appropriate when archaeological data recovery is being 

considered to mitigate adverse effects on a property’s scientific importance, to determine 

if the property also has ascribed religious and cultural significance. Where appropriate, 

such consultation opportunities may be used to meet the separate consultation 

requirements of 43 CFR 7.7 of the 1979 Archaeological Resources Protection Act (16 

U.S.C. 470aa–470mm) and NAGPRA Section 3(c) as well as those of 54 U.S.C. 302101-

302108; 302301-302304; 302501-302505; 302701-302706; 302902-302909; 306101; and 

303902-303903 and 54 U.S.C. 306101-306114.

However, the BLM must be careful to keep the distinct legal purposes of these Acts 

separate, so as to eliminate any confusion for the various participants and those tracking 

agency compliance. Losing focus on the requirements of individual laws and their

reasons for obtaining the Indian tribal input can result in omissions, mistakes, 

inappropriate expectations on the part of Indian tribes, and inadvertent noncompliance on 

the BLM’s part.

2. Archaeological Resources Protection Act. The ARPA provides for the protection and 

management of archaeological resources through the approval of permits for their 

excavation or collection and the imposition of civil and criminal penalties. Tribal 

consultation requirements under ARPA derive from sections 4(c) and 10. Section 4(c) 

requires the responsible Federal land manager to notify the appropriate Indian tribe 

before approving a heritage resource use permit (see MS-8150) for the excavation or 

collection of archaeological resources (see 43 CFR 7.3), if the Federal land manager 

determines that a location with cultural or religious importance to the tribe may be 

harmed or destroyed by the permitted activity.
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Section 4 of the Archaeological Resources Protection Act

 Requires the Federal land manager, before issuing a permit to excavate or 

remove archaeological resources from public land, to notify the affected Indian 

tribe when a location having cultural or religious importance to the tribe may be 

harmed or destroyed by the permitted activity.

 Requires Federal land managers to include in the permit any terms and 

conditions deemed necessary to carry out the purposes of the act. Section 10 

links ARPA’s implementation and the purposes of the American Indian Religious 

Freedom Act.

_______________

 Uniform regulations at 43 CFR 7.7 recognize that notification logically leads to consultation if 

the tribe so requests, and require that any terms and conditions agreed to through 

consultation will be included in the permit.

Figure X-3 Provisions of Section 4 of the Archaeological Resources Protection 

Act.

a. Section 4(c). The exact wording of Section 4(c) of ARPA is:

“If a permit issued under this section may result in harm to, or destruction of, any religious or 

cultural site, as determined by the Federal land manager, before issuing such permit, the 

Federal land manager shall notify any Indian tribe which may consider the site as having 

religious or cultural importance. Such notice shall not be deemed a disclosure to the public 

for purposes of Section 9” (16 U.S.C. 470cc(c); emphasis added).

The statutory term site in the phrase “religious or cultural site” does not mean the 

same as the word site in the discipline of archaeology, and should instead be 

understood to refer to a place or a location, whether archaeological in nature or not. 

The ARPA regulations provide, for example, that a “Federal land manager may enter 

into agreement with any Indian tribe . . . for determining locations for which such 

tribe . . . wishes to receive notice under this section” 43 CFR 7.7(b)(3), (emphasis 

added). 

Considerations regarding the term site within an ARPA context:

(1) A site having religious or cultural importance is probably at least as likely to 

occur in the absence of archaeological resources as in their presence. If the 

Federal land manager were to notify tribes only with respect to archaeological 

resources, a location’s religious or cultural importance could go unheeded, and

inadvertent harm or destruction could occur and the BLM’s notification 

requirement would be unfulfilled.

(2) “Having religious or cultural importance” is an AIRFA concept, not an 

archaeological resource one. The phrase came into the 1979 ARPA bill after a 

hearing where testimony was given by advocates for Indian religious freedom and 
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traditional religious practitioners, shortly after the American Indian Religious 

Freedom Act of 1978 became law. The language in ARPA Section 10(a), 

requiring the rule makers to consider AIRFA when drafting uniform 

implementing regulations, was included in the ARPA bill at the same time. It 

reads, “Such rules and regulations may be promulgated only after consideration of 

the provisions of the American Indian Religious Freedom Act (92 Stat. 469; 

42 U.S.C. 1996).” The purpose of AIRFA is to ensure access to religious sites 

and freedom to worship through ceremonials and traditional rites, unhindered by 

Federal infringement, restriction, or intrusion.

(3) When implementing Section 4(c), the focus of notification and consultation 

should not be just the archaeological resources that are the subject of a permit 

application. Rather, BLM should consider the location, nature, scale, and timing 

of permitted activities that would occur under the permit (e.g., presence of work 

crews, surface disturbance) relative to places on the landscape that members of an 

Indian tribe are known, through consultation, to regard as important for their 

traditional cultural and religious observances. Although excavations may 

normally be considered a CX under NEPA, the BLM must still consult with 

Indian tribes under ARPA when the field manager concludes that proposed 

activities might result in harm or destruction to religious or cultural sites or 

traditional cultural or religious practices that occur there.

(a) Would permitted activities in the area, at the time proposed, hinder or 

intrude on legally (AIRFA) protected religious use? If the Federal land 

manager is confident, based on previous consultation, that permitted activities 

would not hinder such use, there would be no reason to notify an Indian tribe 

before processing an ARPA permit application.

(b) Would permitted activities in a specific place, including an archaeological 

site, raise cultural concerns? For example, a ruin that an applicant has 

selected for excavation might be recognized in cultural tradition as a 

venerable ancestral home, or an archaeological site might contain features that 

are always considered important for cultural or religious reasons. Those kinds 

of concerns should influence the BLM decision about issuing a permit for 

excavating and/or removing archaeological resources. When the BLM 

notifies and consults tribes under ARPA, the focus should not be restricted to 

the archaeological resources identified in the permit application. The BLM 

also should consider the: (1) location, (2) nature, (3) scale, and (4) timing of 

the activities that would occur under the permit.

(c) Also, a tribe might have concerns about the potential for disturbing 

human remains and funerary objects. This would be subject to 

consultation under NAGPRA. The BLM must take reasonable steps to 

determine whether a planned activity may result in the excavation of Native 

American human remains and/or cultural items, and notify and consult with 
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Indian tribes prior to approving permits for such activities. (See 43 CFR 10.3 

regarding consultation for intentional excavations.)

Consultation for ARPA 4(c) Purposes

BLM consults with— Purpose of consultation is—

Tribal representative(s) whom the 

tribal government has designated for 

this purpose 

● To consider tribal religious or cultural 

locations on public lands, which 

archaeological activities, if permitted, 

could harm or destroy 

● To consider protective terms and 

conditions that could be put into a permit 

to protect tribal religious or cultural 

locations from harm or destruction

Figure X-4 Tribal consultation for purposes of Section 4(c) of the Archaeological 

Resources Protection Act.

b. Consultation Procedures. In general, only permits for major testing programs, 

excavation, or collection require tribal notification and consultation before being 

issued. (See ARPA Section 4 and 43 CFR 7.7.) The Federal land manager 

determines, based on information obtained from Indian tribes, whether proposed 

archaeological activities on public lands (such as specific instances of testing or 

excavation) could harm or destroy places of tribal religious or cultural importance, 

such as places where members of a tribe conduct cultural activities and religious 

observances. Because of their nature, scale, or timing, most inventory and minor 

testing proposals have little potential to permanently harm or destroy such places and 

will not warrant notification.

When the responsible BLM manager determines that tribal notification is necessary 

before processing an ARPA permit application, the BLM should notify the 

appropriate tribe(s) by mail, with return receipt requested. The notification letter 

should—

 Describe the location and nature of the proposed archaeological work,

 Identify the harmful or destructive effects the proposed work might have on 

known places of religious or cultural importance,

 Offer to consult with the tribe regarding the proposed work,

 State that any request for consultation must be received by the BLM within 30 

days from the date the tribe received the notification letter,

 Cite ARPA Section 4(c) and 43 CFR 7.7(a) as the basis for notification, and
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 Cite NAGPRA Section 3(c) if the proposed work would involve intentional 

excavation of human remains, funerary objects, sacred objects, or objects of 

cultural patrimony

If the tribe asks to consult after receiving the notification letter, then the consultation 

should be undertaken expeditiously, consistent with the procedural requirements and 

timeframes contained in 43 CFR 7.7(a)(3), MS-8150, and Chapter III of this 

handbook. When permit-related consultation is taking place, it is appropriate to use 

the opportunity to consult prospectively with regard to NAGPRA to develop 

procedures to be followed in case human remains or cultural items are discovered. 

c. Decision and Documentation. Based on the results of consultation and in 

conformance with 305 DM 3 (see below), the BLM must consider whether to modify 

the proposed work to accommodate the tribe’s concerns or even deny the permit 

altogether. The Federal land manager must determine the nature, location, and timing 

of field excavation as well as analysis methods that will be authorized in the permit. 

A standard for boundary evidence certificate of land boundary locations and land 

status must be obtained by cadastral staff when authorized work is contemplated 

within one-quarter mile of a boundary. When decisions about field work and 

laboratory analyses do not conform to the requests of Indian tribes, the manager must 

document the reasons in the permit file and notify the tribes of the outcome and its 

basis.

(1) Conformance with DOI policy on integrity of scientific and scholarly 

activities. On December 16, 2014, the Department issued 305 DM 3 on Integrity 

of Scientific and Scholarly Activities. The policy and requirements apply to all 

DOI employees when they engage in, supervise, manage, or influence scientific 

activities. DOI policy states that: “Science and scholarship play a vital role in the 

Department’s mission, providing one of several critical inputs to decisionmaking 

on conservation and responsible development of natural resources, preservation of 

heritage resources, and responsibilities to tribal communities.” The manual 

establishes a number of policy statements, including that the DOI will:

 Support a culture of scientific integrity;

 Recognize the importance of scientific information, science, and 

scholarship as methods for maintaining and enhancing the effectiveness 

and establishing credibility and value with all sectors of the public;

 Preserve the integrity of scientific activities it conducts and activities that 

are conducted on its behalf;

 Facilitate the free flow of scientific information; and

 Document the scientific findings considered in decisionmaking.
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Responsibilities delegated down to managers and supervisors include the 

obligation to comply with and implement this chapter as it pertains to their area of 

management or supervision and to ensure that all contracts and permits covered 

under the scope of this chapter and under their purview include the requirements 

of this policy in the performance work statement.

(2) Non-federally recognized tribes and nontribal groups may be notified. The 

uniform regulations implementing ARPA provide that the Federal land manager 

may also give notice to any other Native American group known to consider 

potentially affected locations as being of religious or cultural importance (43 CFR 

7.7(a)(2)). Input from non-federally recognized and nontribal groups is in the 

nature of public participation, not government-to-government consultation. 

Nontribal groups might include environmental organizations interested in 

protecting archaeological sites or Indian sacred sites.

(3) Document unsuccessful efforts. If all efforts to notify and consult with the 

appropriate Indian tribe(s) prove unsuccessful, the permit application may be 

processed without further delay. In all cases, documentation of efforts to notify 

and consult must be included in the permit file. This documentation will serve as 

evidence of notification and consultation efforts in accord with 43 CFR 7.7.

3. Native American Graves Protection and Repatriation Act.

a. Introduction. NAGPRA was enacted in 1990 to address the rights of lineal 

descendants, Indian tribes, and Native Hawaiian organizations to certain Native 

American human remains, funerary objects, sacred objects, and objects of cultural 

patrimony (cultural items). The statute, and its implementing regulations, 43 CFR 10, 

provide terms, definitions, and procedural requirements for addressing treatment and 

disposition of Native American human remains and cultural items. Because the BLM 

does not have lands or programs in Hawaii, the following guidance is limited to lineal 

descendants and Indian tribes.

BLM managers are required to consult with tribes under NAGPRA to determine 

affiliation and disposition of Native American human remains and cultural items. 

This section addresses tribal notification and consultation requirements under 

NAGPRA. Refer to the statute, regulations, and BLM-specific policy for the full 

scope of procedural requirements for NAGPRA compliance, such as documentation 

of collections and procedures for new discoveries.

NAGPRA has two distinct parts. Its provisions for collections of Native American 

human remains and cultural items in the control of the BLM, generally, before 

NAGPRA was enacted on November 16, 1990, differ from the provisions that apply 

to Native American human remains and cultural items discovered on public lands 

after that date. The former are considered to be “existing collections” and the latter 

are “new discoveries.” Items that come into the control of the BLM after 1990, but 
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that did not come from the public lands also represent collections, such as items that 

are acquired through law enforcement efforts or donations to the BLM.

b. Collections. The purposes of tribal consultation under the Collections provisions of 

NAGPRA are to identify Native American human remains, funerary objects, sacred 

objects and objects of cultural patrimony in agency museum collections and to 

determine which Indian tribes are culturally affiliated with the human remains and 

cultural items, and thus may claim them for repatriation. BLM will also consult on 

the treatment and disposition of human remains for which no tribe is culturally 

affiliated and determined to be “culturally unidentifiable.” 

Often, these collections are housed in non-federal museums and universities 

(repositories), and BLM, therefore, must coordinate the process with the repository 

officials to document collections and provide Indian tribes access to collections.

Specific requirements for producing summaries and inventories, tribal and public 

notice, and steps for responding to claims and repatriating are provided in NAGPRA 

Sections 6 and 7 and 43 CFR 10.8-11and relevant BLM NAGPRA policy. The 

NAGPRA regulations include specific steps and standards for consultation and 

sharing information.

NAGPRA Sections 5, 6, and 7 and 43 CFR 10 Subpart C

 Section 5 and 43 CFR 10.9 require Federal agencies and museums to complete

an inventory of human remains and associated funerary objects in consultation 

with Indian tribes and traditional religious leaders. Inventories have two parts, one 

of lists human remains that have been determined to be culturally affiliated with 

Federally recognized Indian tribes; the second lists remains for which affiliation 

could not be determined, and are considered to be Culturally Unidentifiable.

 Section 6 and 43 CFR 10.8 require Federal agencies and museums provide a 

summary of unassociated funerary objects, sacred objects, and objects of cultural 

patrimony to Indian tribes and traditional religious leaders and consult with them.

 Section 7 and 43 CFR 10.10 states that, if pursuant to Sections 5 or 6, cultural 

affiliation is established/shown and if requested by the tribe or known lineal 

descendant, the cultural items shall be returned at a place and in a manner of 

delivery determined through consultation. 43 CFR 10.11 provides for disposition of 

Culturally Unidentifiable human remains to claimant groups.

Figure X-5 Provisions of Sections 5, 6, and 7 of the Native American Graves 

Protection and Repatriation Act and Corresponding Regulations.

c. New Discoveries. New discoveries under NAGPRA are situations in which Native 

American human remains and/or cultural items are intentionally excavated or 

inadvertently discovered on public land after NAGPRA was enacted on November 

16, 1990. Where the Collections sections of NAGPRA are in many ways 

retrospective, addressing past activities where Native American human remains 
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and/or cultural items were collected, the New Discoveries section is prospective, 

addressing new discoveries on the public lands. 

Consultation for both planned and unanticipated activities includes obtaining tribal 

views on treatment and disposition of Native American human remains and/or cultural 

items discovered on public lands. Consultation informs procedures and provision of 

information, as well as a written Plan of Action, should the remains or items be 

excavated or removed, and transfers of custody to claimant tribes. The consultation 

and documentation requirements for planned excavations and inadvertent discoveries 

are prescribed in NAGPRA Section 3 and 43 CFR 10.3-6.

NAGPRA Section 3 and 43 CFR 10 Subpart B, “New Discoveries”

 Provide that ownership and control of Native American human remains and/or 

cultural items discovered on the public lands after 1990 shall be (in priority order) 

with lineal descendants, Indian tribe on whose lands the remains or items were 

discovered, culturally affiliated Indian tribes, tribe that is recognized as aboriginally 

occupying the area in which the remains or objects were discovered on whose 

aboriginal land the remains and objects were discovered according to the Indian 

Claims Commission or US Court of Claims, a tribe with a cultural relationship

 Require the Federal agency to notify potential lineal descendants and potentially 

claimant tribes when Native American human remains and/or cultural items are 

discovered on the public lands.

 Require the responsible Federal agency to consult with the affected Indian tribes 

and developing a Plan of Action before authorizing excavation or removal of Native 

American human remains, funerary objects, sacred objects and/or objects of 

cultural patrimony from public land.

 Require the responsible Federal agency to safeguard Native American human 

remains and/or cultural items discovered during an authorized land use, and to halt 

the land use for as much as 30 days (43 CFR 10.4(d)(iv)).

 Require the Federal agency to determine lineal descendants or Indian tribes that 

have rights to the remains and/or items, and upon a valid claim, transfer custody. 

Figure X-6 Provisions of Section 3(c) and (d) of the Native American Graves 

Protection and Repatriation Act and Corresponding Regulations.

(1) Intentional Excavation. BLM must take reasonable steps to determine whether a 

planned activity may result in the excavation of Native American human remains 

and/or cultural items subject to NAGPRA from Federal lands. When an 

intentional excavation is planned, BLM must follow the procedures found at 43 

CFR 10.3 and any applicable requirements of applicable State laws, as specified 

in statewide BLM-SHPO protocol agreements. In addition, a cultural resource 

use permit (see MS-8150) or equivalent documentation is required, which ensures 

that the recovery is conducted in accordance with ARPA, as required by 43 CFR 

10.3(b)(1). 
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BLM managers must notify and consult with Indian tribes before issuing 

authorizations when it anticipates that an activity may result in the discovery of 

Native American human remains and/or cultural items. Consultation informs the 

development of BLM’s Plan of Action for the identification, treatment, recording, 

and disposition of Native American human remains and/or cultural items. Plans 

of Action have a specific format, which is detailed in the regulations at 43 CFR 

10.5(e). The BLM manager signs the Plan of Action. Consulting tribes are

provided a copy and may sign, but do not have to sign. 

NAGPRA Notification and Land Use Authorizations. NAGPRA requires that anyone who 

discovers human remains or other NAGPRA items on public land report them to the BLM 

manager in writing. All Federal authorizations to carry out land use activities on the public 

lands, including all leases and permits, must include a requirement for the holder of the 

authorization to notify the appropriate Federal official immediately upon the discovery of 

Native American human remains and/or cultural items (43 CFR 10.4(g)).

Plans of Action address specific projects. On a more programmatic level, a 

Comprehensive Agreement is encouraged, following 43 CFR 10.5(f). These 

agreements are developed in consultation with Indian tribes, and the BLM 

Manager and tribal officials sign.

(2) Inadvertent Discoveries. An inadvertent discovery is a discovery of Native 

American human remains and/or cultural items on the public lands when there is 

no Plan of Action. When Native American human remains or other NAGPRA 

cultural items are discovered on public land, BLM offices must handle this in the 

manner described in the inadvertent discovery procedures found at 43 CFR 10.4 

and any applicable requirements of State laws, as specified in statewide BLMSHPO protocol agreements. 

If the discovery occurs, but no Plan of Action is in place, within three working 

days, the BLM manager must telephone, notify in writing, and initiate tribal 

consultation. Work must cease at the location of the discovery and the remains 

must be safeguarded for up to 30 days while the BLM conducts tribal consultation 

to determine next steps. If the human remains and/or cultural items must be 

removed, BLM develops a Plan of Action to address the treatment, recording, and 

disposition, in accordance with 43 CFR 10.5(e). 

To minimize chances of a 30-day work stoppage, when there is a reasonable 

likelihood that a project will result in the discovery of Native American human 

remains and/or cultural items, BLM offices should consult with Indian tribes and 

develop plan(s) of action that will be implemented should discoveries occur. 

The following table provides a summary reference of the provisions of NAGPRA 

for both Collections and New Discoveries.
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Quick Reference – New Discoveries and Collections Requirements under NAGPRA

Planned Excavation and Inadvertent 

Discovery on Federal or Tribal Lands

Collections Held by Federal Agencies or Museums 

that Receive Federal Funds

Authorities: 25 USC 3002 (Section 3)

43 CFR 10 Subpart B (§10.3-10.7)

25 USC 3003-3005 (Sections 5-7)

43 CFR 10 Subpart C (§10.8-10.13)

Deadlines: Effective November 16, 1990 Summaries: November 16, 1993

 6 months after receipt of a new collection, newly 

identified collection, or notification of a new Indian 

tribe

 3 years after receipt of Federal funds

Inventories: November 16, 1995

 2 years for new collection/tribe

 5 years of first receipt of Federal funds

Documentation 

and 

Investigation 

Requirements:

 Consultation

 Plan of Action

 Scientific methods and techniques for 

removal, recording, and analysis

 Descriptive and interpretive report

 Curation of unclaimed NAGPRA 

cultural items

 Consultation

 Summaries: general descriptions of collections that 

may contain unassociated funerary objects, sacred 

objects, objects of cultural patrimony

 Inventories: item-by-item descriptions of human 

remains and associated funerary objects.

 Curation of Culturally Unidentifiable cultural items.

Priority Order 

of Control:

1. Lineal descendant

2. Indian tribe land owner

3. Culturally affiliated Indian tribe or 

Native Hawaiian Organization

4. Indian tribe with a “stronger cultural 

relationship”

5. Indian tribe that aboriginally 

occupied the area (as determined by 

the Indian Claims Commission)

6. Unclaimed

1. Lineal descendant

2. Culturally affiliated Indian tribe or Native 

Hawaiian Organization

3. Culturally Unidentifiable

Public 

Notification:

Publication: 

Frequency of 

Publication:

Notice of Intended Disposition

Newspaper of general circulation in the 

area in which cultural items were found 

and, if applicable, a newspaper of general 

circulation in the area(s) in which 

affiliated Indian tribes now reside.

At least twice, one week apart

Notice of Inventory Completion (human remains & 

associated funerary objects)

Notice of Intent to Repatriate (unassociated funerary 

objects, sacred objects, objects of cultural patrimony)

Federal Register

Publish One Time

Term for 

Transference 

of Control:

“Transfer of Custody” of human remains, 

funerary objects, sacred objects, objects 

of cultural patrimony

“Repatriation” for “Culturally Affiliated” human 

remains, funerary objects, sacred objects, objects of 

cultural patrimony

“Transfer of Control” of culturally unidentifiable 

human remains funerary objects

Figure X-7 Quick Reference for New Discoveries and Collections Requirements 

under the Native American Graves Protection and Repatriation Act.
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d. Consulting Parties under NAGPRA. BLM managers consult under NAGPRA with 

lineal descendants, Indian tribes, and traditional religious leaders. For collections, the 

BLM Federal officer is the State Director. For new discoveries, the BLM officer may 

be the State Director, District Manager, Field Manager or Monument Manager. Refer 

to BLM Manual 1203, Delegations of Authority. As with other consultation, BLM 

staff may facilitate and coordinate communication in support of consultation efforts.

Finding lineal descendants for NAGPRA consultation will be rare, but BLM must 

consult with lineal descendants if any are known. Lineal descendants do not have to 

be members of federally recognized tribes. 

Many Indian tribes have designated NAGPRA representatives to consult with Federal 

agencies. In the absence of a designated tribal NAGPRA representative, the BLM

officer should consult with the executive officer of the tribe or other representative

identified by tribal leadership. 

BLM must also consult with individuals who are recognized by members of an Indian 

tribe as being traditional religious leaders with expertise in identifying cultural items.

NAGPRA Activity Consulting Parties

Collections: Inventories of 

human remains and 

associated funerary 

objects

43 CFR 10.9(b)

Lineal descendants; and

Indian tribe officials and traditional religious leaders—

 From whose tribal lands the human remains and associated funerary objects 

originated;

 That are, or are likely to be, culturally affiliated with human remains and 

associated funerary objects; and

 From whose aboriginal lands the human remains and associated funerary objects 

originated 

Collections: Summaries of 

unassociated funerary 

objects, sacred objects and 

objects of cultural 

patrimony

43 CFR 10.8(d)

Indian tribe officials and traditional religious leaders—

 From whose tribal lands unassociated funerary objects, sacred objects, or objects 

of cultural patrimony originated;

 That are, or are likely to be, culturally affiliated with unassociated funerary 

objects, sacred objects, or objects of cultural patrimony; and

 From whose aboriginal lands unassociated funerary objects, sacred objects, or 

objects of cultural patrimony originated 

New Discoveries on 

Federal lands

43 CFR 10.5(a)

Lineal descendants; and 

Indian Tribal officials from:

 From Indian tribes on whose aboriginal lands the planned activity will occur or 

where the inadvertent discovery has been made; and

 From Indian tribes that are, or are likely to be, culturally affiliated with the human 

remains, funerary objects, sacred objects, or objects of cultural patrimony; and

 From Indian tribes that have a demonstrated cultural relationship with the human 

remains, funerary objects, sacred objects, or objects of cultural patrimony.

Figure X-8 Appropriate Consulting Parties Associated with Selected Native American Graves 

Protection and Repatriation Act Activities.
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Refer to the regulations for specific direction on consulting parties when working on 

different NAGPRA activities, as summarized in the table below.

e. Access to Information, Collections, and Documentation. Among other goals, 

NAGPRA was intended to ensure Tribal representatives access to information about 

collections associated with their Indian tribes and ancestors. Consultation to 

determine cultural affiliation and disposition requires an exchange of information.

(1) Physical Access. Consultation requirements are prescribed in the regulations and 

direct that agencies provide certain materials to help tribal officials identify 

NAGPRA cultural items. BLM may need to make arrangements for tribal 

officials to travel to the repositories where the collections are housed or to attend 

meetings to discuss NAGPRA items. 

(2) Access to Documentation. The consultation standards in NAGPRA require that 

Federal agencies and museums provide information to lineal descendants and 

Indian tribes. The regulations also require that Federal agencies and museums 

request information from descendants and tribes about whom to contact and 

procedures for the consultation process, as well as the kinds of items considered 

to be funerary objects, sacred objects and objects of cultural patrimony. See 43 

CFR 10.8(d)(3-4) and 43 CFR 10.9(b)(3-4) for requirements for information 

exchange for NAGPRA collections. See 43 CFR 10.5(c-d) for information 

exchange for NAGPRA new discoveries. 

(3) Use of Images and Digital Scans. The use of photographs in NAGPRA activities 

should be carefully considered. Many tribes are uncomfortable with the creation 

and distribution of images of human remains or funerary objects. However, this 

can be one of the most effective consultation tools for sharing information. The 

distribution of images must be limited to those individuals who need to see them 

for determinations of affiliation and consultation purposes. 

C. Special Considerations/Issues That Apply to the Cultural Heritage Program

1. Reburial of Native American Human Remains and Cultural Items as Defined by 

NAGPRA. 

a. Reburial on Public Lands. Lineal descendants and Indian tribes may ask to rebury 

Native American human remains and funerary objects on the public lands. While not 

a component of NAGPRA, reburial is often a requested outcome, and the BLM may 

consider reburial of Native American human remains and funerary objects once the 

NAGPRA process has concluded (i.e., human remains and/or cultural items have 

been repatriated or transferred to claimant descendants or tribes).

The reburial of NAGPRA items on public lands is a discretionary action and 

authorized on a case-by-case basis. The BLM is not required under NAGPRA, or any 
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other authority, to rebury repatriated or transferred NAGPRA materials on public 

lands. BLM retains the discretion to decide whether to authorize reburials and under 

what conditions reburials will occur. Reburials may be authorized by the state 

directors with copies of relevant documentation provided to the Washington Division 

of Cultural and Paleontological Resources and Tribal Consultation (WO-240) as part 

of annual report submissions.

In evaluating a reburial request, BLM managers should consider the legal and 

logistical issues associated with reburial, such as:

(1) Land Status and Selection. Lands best suited for reburial activities are locations 

well away from areas or routes frequented by the public and areas withdrawn 

from multiple uses and mineral entry, such as wilderness areas and WSAs. These 

are areas where future earth disturbing lands uses are unlikely.

(2) Coordination with Relevant Authorities. Reburial actions must also comply 

with FLPMA, NEPA, NHPA, NAGPRA, ARPA, AIRFA, and Executive Order 

13007. 

(3) Legal Protection. All activities and documentation related to reburial must be 

kept confidential to the maximum extent authorized by law. As appropriate, sites 

may be part of historic properties as defined in the NHPA. Civil and criminal 

penalties may result from vandalism, disturbance, removal, and/or trafficking of 

items from the burial under ARPA, NAGPRA, and/or other authorities. 

(4) Practical Considerations. Any applicable State health and safety or cemetery 

laws must be complied with prior to a reburial. Tribes typically request that

reburials be as close to the original interment location as feasible. Lineal 

descendants and/or claimant tribes must be offered an opportunity to be present 

and conduct a ceremony at the reburial. Reburied materials must not include 

materials that could create a future safety hazard. No monuments or memorials 

may be constructed or left at the site. Protective measures such as screening may 

be considered. 

(5) Future Bureau Responsibilities. Identify any future responsibilities, such as 

providing access to tribes (if requested) and monitoring. The use of fencing or 

other protective devices that would require ongoing monitoring are discouraged. 

Consider entering into a reburial agreement (MOU) with the tribes articulating 

roles and responsibilities.

(6) Budget Considerations. Consider the costs to the agency for allowing a reburial. 

The BLM may facilitate the reburial by providing staff and equipment. For post1990 excavations or inadvertent discoveries related to a BLM-funded, permitted, 

or licensed project, costs associated with reburial must be considered part of the 
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project costs of the land use program or land use authorization borne by the 

applicant.

Once reburial locations have been identified and a reburial plan developed addressing 

the considerations mentioned above, the BLM manager must send the proposal to 

their state director for approval. The BLM’s cultural staff will maintain records of 

such reburials as part of heritage resources site record databases.

b. Reburial vs. Stabilization.

(1) For museum collections (Sections 5–7 of NAGPRA; 43 CFR 10.8-11), reburial 

may be authorized on a case-by-case basis for Native American human remains 

and cultural items repatriated from BLM museum collections to the claimant 

Indian tribe(s). BLM may also rebury culturally unidentifiable remains from 

BLM museum collections following disposition authorized in 43 CFR 10.11(c).

(2) For new discoveries (Section 3 of NAGPRA; 43 CFR 10.3-7), reburial may be

authorized on a case-by-case basis upon completion of a transfer of custody of 

newly discovered human remains and cultural items (intentional excavations and 

inadvertent discoveries) excavated or removed from the public lands to claimant 

Indian tribe(s). Costs associated with reburial for new discoveries related to 

projects funded, permitted, or licensed by the BLM, if authorized, may be 

considered part of project costs.

(3) For inadvertent discovery situations where burials are eroding out of the ground 

and individual bones are being lost and destroyed by washing down slope or 

weathering, or situations where burials are uncovered and individual bones 

dislodged due to land-disturbing activities, field offices are authorized to take 

emergency measures to place the bones together as close to the original location 

as possible and rebury them with the least ground disturbance possible so as not to 

draw attention to the location. The BLM manager must still notify Indian tribes 

pursuant to the New Discovery provisions of NAGPRA at 43 CFR 10.4(d). These 

actions represent efforts to stabilize the burial, as opposed to excavation or 

removal. Should the location be vulnerable to future natural or human activity, 

the BLM manager should, after consultation with potentially claimant Indian 

tribes, consider excavation or removal to a more secure location, following 

NAGPRA requirements at 43 CFR 10.3, including a Plan of Action.

2. Data Security and Confidentiality. The BLM is the sole Federal agency responsible for 

collecting resource information for the lands it manages. It is also responsible for 

maintaining that information in a secure environment. This information is used to 

evaluate the significance of these resources. It is also used to develop appropriate 

protection measures in long-term land-use planning documents and in the environmental 

documentation supporting multiple use decisions. Public disclosure of heritage resource 

information is restricted under several legal authorities, including 43 CFR 7 
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implementing ARPA Section 9 and 54 U.S.C.307103. Section 1 of Executive Order

13007 is an executive policy that supports the non-disclosure of tribal information.

Disclosure of sensitive Native American information may be denied if it—

 Exists only in “working files” (i.e., documents that are not formal products of the 

agency or official correspondence, such as raw ethnographic data or notes—

except for information used in making a decision, which must become part of the 

official decision record and therefore be subject to disclosure); 

 The BLM has gone through the process outlined in 54 U.S.C. 307103 and 

disclosure would risk harm to the property, cause a significant invasion of 

privacy, or impede the use of a traditional religious site by practitioners; or

 Pertains to an archaeological resource as defined in 43 CFR 7, and disclosure 

would risk harm to the resource.

Information pertaining to spiritual, religious, or cultural values or beliefs, when they 

coincide in space with historic properties (under NHPA) or archaeological resources

(under ARPA), could also be protected from disclosure under these authorities. The 

confidentiality of information less firmly associated with a historic property or 

archaeological resource, however, is not resolved. No blanket FOIA exemption exists for 

NAGPRA related information. Thus, potentially sensitive information, such as the 

specific nature of materials subject to NAGPRA consideration, and the identity of 

descendants or culturally affiliated Indian tribes, may be subject to FOIA disclosure. 

However, if the NAGPRA cultural items are associated with an archaeological resource, 

the locational information would be subject to the FOIA exemption in ARPA. 

Consequently, the BLM state FOIA officer must evaluate any NAGPRA-related FOIA 

request, case-by-case, in close consultation with the NAGPRA coordinator and the 

responsible manager. While BLM managers should make every effort to safeguard 

sensitive information to the fullest degree possible, information requested under a valid 

FOIA request may not be withheld unless a FOIA exemption applies. On a case-by-case 

basis, BLM state offices may negotiate unique solutions with tribes to safeguard sensitive 

information. Contracts for ethnographic studies may require submission of summary 

reports to the BLM. These should contain no confidential information, maps, or figures 

and are intended to provide managers and the public an overview of the study, its results, 

and implications for management decisions. Final comprehensive reports can contain 

sensitive information and could be housed at tribal headquarters or tribal historic 

preservation offices. BLM and tribes may agree that such comprehensive final reports 

will be held at tribal offices, and specified BLM staff will be granted access and use of 

them at those locations. When data utilized by the BLM during the decisionmaking 

process will be housed at tribal offices, access and use of the data must be documented in 

an MOU.
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3. Data Share Agreements.

a. Background. When the BLM shares sensitive heritage resources information with 

tribes, it documents the specific purpose and retains appropriate safeguards through a 

data sharing agreement signed by the BLM Federal officer with jurisdiction over the 

information provided. Site records and survey data are the property of the BLM as 

entrusted to our management under FLPMA and other authorities. These data do not 

constitute the “intellectual property” of tribes despite cultural ties to some 

archaeological, protohistoric, and historic sites by Indian tribes. Such data may be 

needed by tribes for purposes of input into the NHPA Section 106 process, ARPA 

permitting, or the identification of places of traditional cultural and/or religious 

importance.

On a broad level, the BLM must withhold from public disclosure information about 

historic or archaeological resources under both the NHPA (after going through the 

process described at 54 U.S.C. 307103) and the Archaeological Resources Protection 

Act (Section 9(a)). Further, Executive Order 13007 directs Federal agencies to 

“maintain the confidentiality of sacred sites.”

However, these confidentiality provisions refer to “disclosure to the public.” Tribes, 

in contrast, have a standing that must be recognized as separate and distinct from the 

public. The sharing of sensitive heritage resources data may be undertaken as 

described below with the understanding that it is BLM policy to consult with tribes 

regarding decisions that may affect tribal values or interests. This sharing is in 

accordance with the DOI’s Policy of Consultation with Indian tribes, which 

emphasizes the goals of improving informed BLM decisionmaking and the fostering 

of a government-to-government exchange of information in the spirit of trust, respect, 

and shared responsibility.

Overlapping of ancestral, aboriginal, or ceded lands will not affect BLM data sharing 

decisions. Competing land claims between tribes is also not a factor in BLM data 

share agreements with individual tribes.

b. Range of Data Share Agreements. Data share agreements may be executed in a 

variety of formats with tribes. 

Tribes may execute user agreements through SHPO offices in states where the SHPO 

controls access to and use of inventory and site data housed in a common repository. 

In these circumstances, potential users must agree to use the data responsibly and to 

protect it from unauthorized release. SHPO staff evaluates data requests and enforces 

the agreements. Such data share agreements may work effectively, although how upto-date such SHPO databases are varies considerably across different states.
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In addition, tribes may negotiate and execute a data share agreement directly with the 

BLM. All data sharing agreements should provide the following as minimum 

standards—

 Specific types (formats, media) of confidential-sensitive data to be provided 

by BLM;

 Purposes for which BLM data is being shared, including expectations for how 

data sharing will assist consultation on BLM plans/projects;

 How and when data will be shared;

 Procedures for identifying data files as “confidential nonpublic data”;

 Reference to relevant legal authorities;

 Identification of tribal staff who will have access to the confidential/sensitive 

data;

 BLM contact persons;

 Security, protection, and access to confidential-sensitive data;

 A commitment by the tribe to protect the data from release to other parties to 

the maximum extent provided by tribal authorities; and

 Notification to BLM when the tribe receives a request by others to access the 

shared data.

Provisions for data sharing between the BLM and a tribe may also be specified within 

NHPA Section 106 PAs provided that the agreement contains the minimum standards 

discussed above.

In the absence of a formal data share agreement, the BLM may share cultural 

information relevant to a BLM-proposed decision with tribes participating in the 

NHPA Section 106 process. The data provided will be at a level of detail needed to 

inform consultation, provided that such sharing of information does not put the 

subject heritage resources at risk from vandalism or theft, or violate a commitment to 

other tribes regarding the safeguarding of confidential information.

c. Cancellation of Data Sharing. A BLM manager may decide to stop further 

distributions of confidential information to tribes if the BLM manager has reason to 

believe that confidential information has been or may be inappropriately distributed 

by the tribe and that BLM’s distribution of information to the tribe poses a risk of 

harm, including actual or potential threats to the integrity or condition of heritage

resources. If the BLM manager determines to end distribution, the manager will 

inform the tribe in writing of the BLM’s decision and the basis for its concerns. The 

BLM should allow the tribe 30 days to initiate consultation to discuss the matter if it 

wishes to continue to receive confidential information.
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d. Data That Should Not Be Shared. BLM heritage resources databases are extensive 

and they may contain information on particular sites that should not be shared with 

tribes under any circumstances. The following situations provide examples:

 Records should be pulled from data exchanges if they pertain to sites located 

on surface estates not managed by the BLM. 

 Data related to sacred sites or places of traditional cultural and/or religious 

importance to a particular tribe provided by traditional religious 

leaders/practitioners and/or ethnographic informants should not be shared with 

other tribes, unless expressly approved by tribal representatives. The BLM is 

obligated under AIRFA and Executive Order 13007 to protect access to and 

physical integrity of sacred sites.

 BLM managers must take great care to ensure that access to and protection of 

sites considered sacred by individual tribes/tribal members is not 

compromised by the release of confidential sensitive heritage resources data to 

other tribes. 

 Data pertaining to human burials or human reburial locations where BLM has 

determined that a connection exists with lineal descendants and/or culturally 

affiliated tribe should not be shared unless expressly approved by the lineal 

descendants or leader of the culturally affiliated tribe.

 Data relating to historic period archaeological/built environment sites 

associated with European-American settlement and use and lacking evidence 

of pre-contact or American Indian occupation/use may be excluded when 

providing data to tribes. (Note that in some cases, tribes may already have 

access to these data through the SHPO. Their review can reveal Native 

American affiliations or associations that may not have been previously 

identified or known).

e. Format and Costs for Data Sharing. The BLM may share digital site and survey 

data if a tribe has the technical capacity to receive, manipulate, and protect the data. 

Many tribes have established GIS for maintaining their own heritage resources data,

which are managed by professionally qualified staff and GIS specialists. In these 

cases, there is no compelling reason not to share digital data as long as an appropriate 

data sharing agreement is in place. Labor costs for preparing and transmitting the 

data dumps will be absorbed by the BLM’s information technology and cultural 

heritage programs. The production, duplication, and distribution of hard copies of 

inventory and evaluation reports and data recovery plans will generally only occur on 

a project or undertaking basis. In these cases, costs must be passed on to the 

applicant or benefitting subactivity.

4. Development of MOUs with Tribes to Facilitate NHPA Section 106 Consultation. In 

the process of reviewing, updating, and rewriting state protocols as required by the 
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National PA, states must include language that encourages development of MOAs or 

MOUs with tribes to better define the NHPA Section 106 consultation procedures best 

adapted to individual tribes. These will be two-party agreements outside of the BLMSHPO protocols, but the protocols should mention the BLM commitment to pursue them. 

Tribal consultation MOUs can define in advance such matters as: (1) the types of 

undertakings tribes wish to consult on; (2) geographical areas where tribes desire NHPA 

Section 106 consultation; (3) types of properties tribes wish to consult on regarding 

determinations of eligibility, effect, or treatment; (4) data sharing procedures; (5) how 

contacts should be made; (6) when contacts are appropriate; (7) who serves as contact 

points; and (8) in what manner should communication be made. Many tribes are 

overwhelmed with Federal Government consultation requests under the various Federal 

statutes. Consultation MOUs can focus consultation just on those sites, areas, or 

undertakings about which the tribes are most concerned.

There are a number of excellent examples of agreements that clarify and streamline 

consultation and coordination and encourage cooperative activities on public lands. BLM 

offices are encouraged to contact state offices for current examples of such accords. 

Examples of successful MOUs negotiated in the past—

 Arizona. Memorandum of Understanding between Hualapai Tribe and the United 

States Department of the Interior’s Bureau of Land Management, Colorado River 

District (2012).

 Idaho. Memorandum of Understanding between the Shoshone-Paiute Tribes of 

the Duck Valley reservation and the Idaho Bureau of Land Management, United 

States Department of the Interior (2007).

 California. Consultation Protocol between Big Pine Paiute Tribe and Bureau of 

Land Management, Bishop Field Office, Ridgecrest Field Office (2003).

5. Qualifications and Costs for Tribal Monitoring or Participation in Archaeological 

Survey and Excavation. Programmatic Agreements or other decision documents may 

specify the appropriate use of tribal members on archaeological surveys, excavations, or 

for the monitoring of these activities, or project land disturbance. Costs for inclusion of 

tribal participants as crew members involved with survey, testing, excavation, or 

monitoring are normally borne by the land use applicant as part of the Section 106 

compliance. The BLM may facilitate arrangements for tribal monitors with the land use 

applicant but will not be involved in the payment for such services by the land use 

applicant. Separate archaeological surveys performed by tribes in addition to those 

archaeological inventories permitted by the BLM and carried out by permittees adhering 

to the Secretary of the Interior’s Standards and Guidelines governing professional 

qualifications for archaeology and history will not be required. See MS-8150, Permitting 

Uses of Heritage Resources. 
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a. Archaeological Survey. Indian tribes may request that tribal members be included 

on archaeological survey crews. Requirements for the inclusion of tribal members on 

archaeological inventory crews do not exist; however, inclusion of such crew 

members may be helpful to document sacred sites or properties of traditional and 

religious significance. Any recommendations regarding identification and evaluation 

of heritage resources encountered will be incorporated into survey reports submitted 

by the heritage resource permittee.

b. Archaeological Excavation. Indian tribes may request that tribal members be 

included on archaeological testing or excavations. Requirements for the inclusion of 

tribal members on archaeological excavation or testing crews do not exist; however, 

inclusion of tribal members on testing or excavation crews may be allowed for 

permits under certain circumstances.

For instance, the heritage resource permittee may include tribal members as part of 

excavation crews if their inclusion is needed in order to recognize and identify any 

cultural items subject to NAGPRA. Such an arrangement may be authorized if tribal 

crew members experience, background, or expertise are comparable to the standards 

the heritage resources permittee requires for its testing or excavation crew members. 

c. Monitoring. Tribal monitors may be included on archaeological crews to observe 

trenching, blading, excavation, or other land disturbing operations the BLM 

authorizes that can disturb human burials or funerary objects subject to NAGPRA to 

ensure that disturbances to the heritage remains are minimized. A separate tribal 

monitoring agreement should be created that specifies the monitors, describes their 

duties, timeframes, and details of any documentation or reports they will produce. It 

will be included in the NEPA decision or PA/MOA. While payments for tribal 

monitors will be agreed to and carried out between the tribe and the proponent, the 

BLM may be involved in crafting the details agreed to by the tribe, the proponent, the 

SHPO, and the BLM as part of the NEPA or Section 106 documentation. 
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CHAPTER XI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

RENEWABLE ENERGY PROGRAM

A. Introduction

This chapter provides background on renewable energy development of the public lands and 

explains when BLM managers and staff may carry out tribal consultation in accordance with the 

BLM’s policy and regulatory requirements for solar and wind energy development on the public 

lands. Due to the scale and scope of solar and wind energy developments, a proposed project’s 

area of potential effects may impact natural resources, landscape features, access, or heritage 

resources important to tribes. The primary focus of consultation for this program is through 

NEPA analysis. Although crucial aspects of consultation are covered in Chapters III and IV, 

some key aspects are highlighted here to assist the reader.

The BLM authorizes solar and wind energy developments under Title V of the FLPMA and its 

enabling regulations at 43 CFR 2800.

B. NEPA Compliance for Utility-Scale Renewable Energy Right-of-Way Authorizations 

In its analysis of utility-scale renewable energy ROW applications, the BLM must always 

comply with requirements of NEPA, including tribal consultation. NEPA and tribal consultation 

may be required when BLM analyzes a renewable energy development after a competitive 

process has taken place.

Renewable energy applications are externally generated requests for the use of lands 

administered by the BLM. As explained below, early coordination between BLM and other 

Federal Government agencies, identification of the purpose and need, and the development of 

alternatives are required components for the decision process the BLM engages in when 

weighing such uses. Each required component may include tribal consultation and would be 

discussed in the NEPA document.

Competitive processes are internally generated administrative processes which may be used to 

determine which among several potential developers may continue BLM analysis and review for 

a renewable energy development on the public lands. For example, the BLM may hold a 

competitive process when there are two or more competing applications for the same system on 

the public lands. In some instances, BLM may invite competition in some areas, such as SEZs, 

as described in the Solar PEIS. When designating such areas, BLM must consult and coordinate 

with tribes throughout the land use planning processes (see Chapter IV of this handbook). 

Further, BLM’s proposed rule, when final, would establish an administrative process for 

handling SEZs and other such designated areas as designated leasing areas (DLAs).

1. Disclosing Early Coordination in the NEPA Process. Field offices must incorporate 

the early coordination in NEPA documents, such as tribal consultation, and discuss this 

information in scoping meetings and other public meetings. These may also be reflected 

in the alternatives section of the NEPA document.
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For renewable energy applications, early coordination may be conducted when land use 

planning decisions are in place that would establish the application area lands for 

competitive purposes. The BLM should incorporate by reference and tier, as appropriate 

to the current LUP and disclose the tribal consultation and coordination that occurred 

within the prior NEPA documents. The NEPA documents must incorporate any PAs or 

MOU into the scoping and other public meetings sections of the NEPA documents. In 

some instances, tribal consultation and coordination may have been completed during the 

most recent LUP amendment (e.g., landscape-scale NEPA such as the Solar PEIS) and 

further consultation may not be necessary before BLM issues a NEPA decision for a 

project. However, BLM should address such NEPA processes and decisions in their 

continuing documentation of any consultation and coordination with tribal governments. 

In the event that competition occurs on the public lands for a renewable energy projects, 

such as in an SEZ or a DLA, the BLM may not need to consult further before issuing a 

NEPA decision for the project. However, the BLM should include such NEPA processes 

and decisions in their continuing documentation of any consultation and coordination 

with tribal governments. The NEPA documents must incorporate any PAs or MOUs into 

the scoping and other public meetings sections of the NEPA documents.

2. Purpose and Need. The purpose and need statement in the NEPA document must also 

describe the BLM’s authorities and management objectives. Additionally, offices must 

include a description of the BLM’s decision(s) to be made as part of the purpose and need 

statement to help establish the scope of the NEPA document. 

3. Alternatives. For renewable energy ROWs, the BLM and the applicant consider many 

different types of alternatives during application activities including those suggested to

the BLM by external parties, such as tribes, through scoping and comments on the draft 

NEPA document. The BLM must develop a well-supported rationale when deciding if 

such alternatives are reasonable and whether to analyze them or eliminate them from 

detailed analysis.

C. Tribal Government-to-Government Consultation

Key to improving the permitting and review processes for renewable energy projects is to ensure 

timely tribal consultation as required by various authorities, such as NEPA and NHPA. To

improve government-to-government consultation processes associated with NHPA Section 106, 

the BLM in coordination with the ACHP and other agencies developed a “toolkit” of procedures 

to help guide agencies and project proponents in meaningfully taking into account tribal 

concerns related to the NHPA. The procedures were released to BLM field offices and posted on 

the ACHP website.

On September 24, 2012, the BLM executed a PA establishing general principles governing 

BLM-tribal consultations and describing opportunities for tribal input into the specific steps in 

the NHPA Section 106 compliance process for the solar energy program. Parties to the PA 

include the BLM, ACHP, and SHPOs from Arizona, California, Colorado, Nevada, New 
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Mexico, and Utah. The PA establishes procedures the BLM will follow to meet its NHPA 

Section 106 obligations for all future site-specific solar energy applications where the BLM is 

the lead Federal agency and the application is for projects on BLM-managed public lands. (See

final Solar PA). 

The application of this solar PA to California was amended through the adoption on February 5, 

2016 of a Programmatic Agreement among the Bureau of Land Management, California, the 

California Office of Historic Preservation, and the Advisory Council on Historic Preservation, 

Regarding Renewable Energy Development on a Portion of Public Lands Administered by the 

Bureau of Land Management-California. This more recent PA refines the approach of the Solar 

PEIS and Solar PA on lands administered by the BLM within the boundaries of the Desert 

Renewable Energy Conservation Plan (DRECP). It amends the Solar PEIS through its land use 

planning process and replaces the Solar PA with this new PA, accommodating all renewable 

energy projects, including any renewable energy project or transmission line ROW application 

and any connected actions for solar, wind, geothermal production, and transmission lines that 

also include appurtenant facilities. It also provides additional, locally developed management 

considerations in California. (See renewable energy development PA in California).

D. Solar and Wind Energy Applications—Due Diligence

The BLM requires a plan of development (POD) for all solar and wind applications consistent 

with the provisions of 43 CFR 2804.25(b). The POD must be of sufficient detail to provide the 

basic information necessary to begin the environmental analysis and make tribal consultation 

meaningful for all parties. Such a plan must be submitted in a timely manner, and in the case of 

wind energy it must be submitted prior to the end of the initial 3-year term of a wind energy site 

testing authorization, if such an authorization is held.

E. Early Coordination Meetings and Development Prioritization

Early coordination and careful review of proposed renewable energy projects with tribes, as well 

as Federal, State, and local government agencies, help the BLM identify and prioritize those 

applications for the public lands that have the fewest resource conflicts and the greatest 

likelihood of success. Early coordination meetings inviting tribes and others for consultation 

activities will be required before an authorization is given for lands that are designated for 

competitive solar and wind energy purposes. Subsequent consultation and coordination meetings 

may be held when reviewing the POD for projects of competitively gained authorizations or in 

review of project applications.

1. Early Coordination Meeting Discussions. The BLM requires that all applicants 

schedule and participate in at least two early coordination meetings for proposed 

developments outside of designated competitive areas. The purpose of the meetings 

includes identifying and discussing potential environmental and siting constraints, land 

availability, timeframes, financial obligations, consultation procedures with Indian tribes, 

and potential tribal concerns regarding access, resource utilization, and impacts to sacred 

sites.
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Early coordination meetings can identify necessary studies pertaining to environmental, 

visual, and heritage resources, including the need for ethnographic studies, and allow 

consideration of potential alternative site locations and project configurations.

Other Federal agencies, State agencies and tribes must be invited to participate to ensure 

issues and concerns are given full consideration early in the process. BLM state and field 

offices should establish consultation or coordination agreements with other agencies and 

Indian tribes to facilitate the process.

Lands designated for solar and wind energy competition have already been coordinated 

and consulted on with Federal, State, and tribal governments or offices prior to the 

BLM’s decision to designate such an area. Competitively gained authorizations in such 

areas may not be coordinated or consulted on further, prior to their authorization of the 

development. However, additional coordination and consultation may occur when 

evaluating the POD of such projects as part of the BLM’s ongoing consultation with 

tribal governments. 

Early coordination activities with tribal governments can be incorporated into an 

environmental review document as part of the background information for the NEPA

document in preparation for government-to-government consultation. 

Required early coordination meetings focus on different matters for a potential 

development. The focus of the first early coordination meeting is to discuss the general 

project proposal, the status of the BLM land use planning in the area, potential siting 

constraints, potential environmental issues including anticipated tribal concerns in the 

area, and BLM ROW processes. The second meeting must initiate and ensure 

coordination with Federal, State, and local governments, and Indian tribes. This dialogue 

provides an opportunity to discuss potential environmental and siting constraints and 

modify the proposed project as appropriate before an application is accepted by the BLM. 

Follow-up coordination and government-to-government consultation meetings between 

the BLM and concerned tribe(s) will likely be needed.

2. Review and Screening of Applications. Once an application is received and cost 

recovery agreement established, the BLM will not continue to process a solar or wind 

energy development ROW application without first holding the early coordination 

meetings. No application will continue to be processed until an applicant has submitted a 

complete ROW application with sufficient detail (e.g., acceptable plan of development, 

studies, and inventories) to initiate the environmental analysis and review process, 

including tribal consultation, and the applicant has provided cost recovery fees as 

required by the regulations at 43 CFR 2804.14.

The BLM will prioritize an application by placing it into one of three categories based 

upon the potential level of conflicts the development may have on the public lands, 

including resources, access, and landscapes of tribal concern. It may re-categorize the 

application based on new information received through surveys, public meetings, or other 
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data collection, or after any changes to the application. Should a proposed project meet 

only the criteria of the lowest conflict resources, it would receive priority over other 

applications that meet the medium and high resource conflict criteria. Applications that 

meet one or more medium resource conflict criteria will be prioritized over applications 

that meet high resource conflict criteria. Applications that meet one or more high 

resource conflict criteria may not be feasible to authorize. Developments within a 

designated competitive area will generally be prioritized over all application for solar and 

wind energy developments.

Application screening criteria are specified within the final version of a BLM’s proposed 

rule to amend portions of 43 CFR 2800 and portions of 43 CFR 2880, and develop a 

revised subpart 2809. The proposed rule and the final rule when completed may be found 

at the BLM website. 

F. Project-Specific Consultation 

When the BLM receives an application or is otherwise made aware of a potential solar or wind 

energy project on the public land, the BLM will initiate project-specific consultation with tribes. 

When consulting for a project-specific action, the following steps are identified as requirements 

for processing an application or opportunities for tribal consultation that will satisfy the BLM’s 

policy and regulatory requirements for solar or wind energy development that are summarized in 

appendix 4.

1. Early Coordination. The BLM requires that all prospective applicants schedule and 

participate in two early coordination meetings with the BLM before the BLM will 

continue to process the ROW application for a solar or wind energy development outside 

of DLAs. The purpose of the second coordination meeting is to initiate and ensure early 

coordination with tribes, as well as Federal, State, and local government agencies.

2. Pre-NEPA Public Meetings. If a public meeting is held by BLM for a proposed project 

before the acceptance of an application, tribal governments will be notified and invited to 

participate in the meeting.

3. Application Status. Upon receipt of an application and the POD, the BLM may update 

the tribal governments with the POD and anticipated processing timeline and milestones 

of the project.

4. Begin Protocols in Appendix 4. From this point, follow appendix 4 of this handbook 

which illustrates the procedural, informational, participation, and documentation 

requirements of NEPA, NHPA Section 106, and tribal consultation. The right-hand 

column in this appendix contains recommendations for coordinating the processes and 

successfully meeting compliance requirements prior to making a decision.

Maintain communication with project manager and stay apprised of changes to the 

preferred action and its alternatives within the NEPA document, which are articulated 
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within the POD. This will assist consultation with the tribal governments using the most 

current project information.

G. Comprehensive Solar and Wind Energy Programs

1. Solar Energy. In 2007, the BLM issued Instruction Memorandum (IM) 2011-003, Solar 

Energy Development Policy, to address increased interest in solar energy development on 

BLM-administered public lands and to implement goals to construct renewable energy 

facilities on public lands. This policy established procedures for processing ROW 

applications for solar energy development projects in accordance with the FLPMA and 

the BLM regulations.

The BLM’s practice at that time was to evaluate solar energy ROW applications on a 

project-by-project basis. In addition, many of the BLM’s LUPs did not specifically 

address solar energy development; therefore, projects not in conformance with existing 

LUPs required individual LUP amendments. Moreover, the BLM did not have a standard 

set of mitigation measures that could be applied consistently to all solar energy 

development projects. The need to develop case-by-case mitigation measures and amend 

LUPs added to the time needed to process ROW applications for solar energy projects.

On March 11, 2009, the Secretary of the Interior issued Secretarial Order 3285, which 

announced a policy goal of identifying and prioritizing specific locations best suited for 

the large-scale production of solar energy on public lands. The Secretarial Order required 

DOI agencies and bureaus to work collaboratively with each other, tribes, Federal 

agencies, individual states, local governments, and interested stakeholders, including 

renewable energy generators and transmission and distribution utilities, to : (1) encourage 

the timely and responsible development of renewable energy and associated transmission, 

while protecting and enhancing the nation’s water, wildlife, and other natural resources; 

(2) identify appropriate areas for generation and transmission; (3) develop best 

management practices for renewable energy and transmission projects on public lands to 

ensure the most environmentally responsible development and delivery of renewable 

energy; and (4) establish clear policy direction for authorizing the development of solar 

energy on public lands. On February 22, 2010, Secretarial Order 3285 was amended to 

clarify Departmental roles and responsibilities in prioritizing development of renewable 

energy. The amended order is referred to as Secretarial Order 3285A1.

As an agency with a multiple-use mission, to comply with Secretarial Order 3285A1, the 

BLM must make land use decisions that are environmentally responsible and sustain the 

health and productivity of the public lands for the use and enjoyment of present and 

future generations. The BLM recognized that for solar energy development to be 

successful, it must be consistent with protection of other important resources and values, 

including cultural, historic, and paleontological values, units of the National Park System,

national wildlife refuges, and other specially designated areas.
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To comply with Executive Order 13212 and the Energy Policy Act of 2005, and later 

with Secretarial Order 3285A1, and to replace elements of the 2007 Solar Energy 

Development Policy, the BLM began developing a comprehensive solar energy program 

in much the same way as the BLM had developed the 2006 Wind Energy Policy. In May 

2008, in conjunction with the DOE, the BLM initiated a programmatic environmental 

impact statement (PEIS) for solar energy development under NEPA. In December 2010, 

the BLM and DOE published the Draft Solar PEIS. During the comment period, the 

public, as well as many cooperating agencies and key stakeholders, offered suggestions 

on how the BLM and DOE could increase the utility of the analysis, strengthen elements 

of the BLM’s proposed Solar Energy Program, and increase certainty regarding solar 

energy development on BLM-administered lands. On October 28, 2011, the lead 

agencies published a supplement to the Draft Solar PEIS, in which adjustments were 

made to elements of the proposed Solar Energy Program and to guidance for facilitating 

utility-scale solar energy development to better meet BLM and DOE solar energy 

objectives. The Final Solar PEIS was published in July 2012; after further deliberation 

and consultation, the record of decision (ROD) was signed by the Secretary in October 

2012 that—

 Created a comprehensive Solar Energy Program to administer the development of 

utility-scale solar energy resources on BLM-administered public lands in six 

southwestern states: Arizona, California, Colorado, Nevada, New Mexico, and 

Utah, including a component that requires continued consultation with tribes at 

the project-specific level;

 Provided that future project-specific environmental analyses for solar energy 

development would tier from the analysis in the Solar PEIS/ROD, thereby 

allowing the project-specific analyses to focus just on critical, site-specific issues 

of concern; and

 Established land use allocations and incorporated required programmatic and 

specific design features into 89 BLM LUPs in the 6-state study area.

In addition, the decision: (1) identified areas excluded from utility-scale solar energy 

ROWs; (2) established 17 SEZs, which are priority areas for utility-scale solar energy 

development ROWs, and identified a process to establish new SEZs; and (3) identified 

variance areas, areas potentially available for utility-scale solar energy development 

outside of exclusion areas and SEZs.

2. Wind Energy. In response to Executive Order 13213, issued in 2002, the BLM 

developed the interim Wind Energy Development Policy (IM 2003-020) to address 

immediate needs for responding to requests for wind development on public lands. 

Because of the need for a permanent policy, the BLM in 2003 began a comprehensive 

process of reviewing the potential of the public lands to support wind energy 

development. Utilizing the Programmatic Environmental Impact Statement on Wind 

Energy Development on BLM-Administered Lands in the Western United States (Wind 
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PEIS), which analyzed alternatives and potential impacts of wind energy development, 

the BLM in January of 2006 issued a ROD that—

 Established a comprehensive Wind Energy Development Program to administer 

the development of wind energy resources on BLM-administered public lands in 

11 western states (Arizona, California, Colorado, Idaho, Montana, Nevada, New 

Mexico, Oregon, Utah, Washington, and Wyoming), which includes a component 

that required continued consultation with Indian tribes at the project-specific 

level; 

 Provided that future project-specific environmental analyses for wind energy 

development would tier from the analysis in the Wind PEIS/ROD, thereby 

allowing the project-specific analyses to focus on critical site-specific issues of 

concern;

 Established policies and best management practices (BMP) for the administration 

of wind energy development activities;

 Replaced the BLM Interim Wind Energy Policy with a new policy (IM 2009-43) 

that incorporated the programmatic policies and BMPs evaluated in the PEIS; and

 Amended 52 BLM LUPs in 9 states: Colorado, Idaho, Montana, Nevada, New 

Mexico, Oregon, Utah, Washington, and Wyoming. The LUP amendments 

included the adoption of the Wind Energy Development Program policies and 

BMPs described in the Wind PEIS, as well as identification of specific areas 

where wind energy development will be excluded.

H. Solar and Wind Energy Development Policy

Processing applications for solar and wind energy projects on public lands must be carried out in 

the following manner:

1. Inventory and Planning. The BLM released the Wind PEIS in collaboration with the 

DOE’s National Renewable Energy Laboratory. Appendix B of the Wind PEIS provided 

an inventory of wind resource maps of the public lands administered by the BLM. 

Updates to these wind resource maps are available online on BLM’s West-wide Wind 

Mapping Project, a web-based geospatial data viewer that may be downloaded for 

further review and use. 

All land use planning efforts must address the renewable energy resource potential, tribal 

and public concerns, and opportunities for renewable energy development within the land 

use planning area. Land use plan revisions will address the environmental and 

tribal/public concerns associated with commercial wind energy development, such as the 

availability of lands for development applications or the designation of exclusion or 

competition areas.
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2. Open, Exclusion, and Competitive Lands. Open areas are lands that the BLM may 

accept applications for renewable energy development that have not been identified as 

exclusion or competitive areas. Open areas may have been previously referred to as 

avoidance or variance zones that are potentially sensitive to renewable energy 

development. 

Exclusion areas are lands for which the BLM will not accept applications for renewable 

energy development. BLM has determined that such development of these lands is 

incompatible with specific resource management goals and objectives, and a decision was 

made excluding those lands from renewable energy development. Lands excluded from 

renewable energy site monitoring and testing and development include designated areas 

that are part of National Conservation Lands (wilderness areas, WSAs, national 

monuments, national conservation areas, wild and scenic rivers, and national historic and 

scenic trails). 

Competitive areas are lands that BLM has identified as preferred areas for solar and wind 

energy development. A competitive process to offer these lands is described in the 

BLM’s regulations (when final) under 43 CFR Subpart 2809. Competitively designated 

areas are generally closed to applications for renewable energy development and may 

only hold competition to determine a successful bidder. The selected bidder will receive 

the authorization once all bidding requirements are fulfilled. These areas would include 

areas designated through BLM’s landscape-scale land use planning process as 

appropriate for solar or wind development through a competitive offer. 

Land use plans may identify ROW avoidance, exclusion or competition areas under BLM 

land use planning guidelines (see appendix C of H-1601-1, Land Use Planning 

Handbook). The identification of open, exclusion, and competitive areas on the public 

land may be found in BLM’s land use planning decisions and program implementation 

tools under the BLM’s renewable energy webpage. 

3. Processing Timeframes, Authorizations, and Due Diligence. ROW developments for 

solar and wind energy must be identified as a priority field office workload and will be 

processed in as timely a manner as possible. Application and development due diligence 

requirements are found within the BLM’s development policies and regulations under 43 

CFR 2800. These requirements include those for site and project area testing and 

monitoring, development, cost recovery, rents and fees and bonding. Such policies and 

regulations may be found on the BLM’s renewable energy webpage.

4. Performance and Reclamation Bond. The BLM must require a performance and 

reclamation bond for all solar and wind energy projects to ensure compliance with the 

terms and conditions of the ROW authorization. The authorized officer may increase or 

decrease the bond amount at any time during the term of the ROW authorization, 

consistent with the BLM regulations and policies.
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5. Design Features and Best Management Practices. The BLM’s Solar PEIS identified 

the impacts of solar energy development and BMPs in terms of design features that can 

mitigate or reduce adverse impacts from solar development on the public lands. The 

design features include mitigation measures which in turn specify project-specific plans 

such as heritage resources protection measures and mitigation plans addressing tribal 

concerns to the maximum extent feasible. The terms and conditions of each ROW lease 

or grant must require that these plans be included in a POD and that the holder will fully 

comply with the terms of the plans.

The BLM’s Final Wind PEIS identified the impacts of wind energy development and 

BMPs that can mitigate or reduce adverse impacts from wind development on the public 

lands. The BMPs include mitigation measures which in turn specify project-specific 

plans that may include heritage resources protection measures and mitigation plans 

addressing tribal concerns to the maximum extent feasible. The terms and conditions of 

each ROW lease or grant must require that these plans be included in a POD and that the 

holder will fully comply with the terms of the plans.
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CHAPTER XII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

FLUID MINERAL PROGRAM (RESERVED)
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CHAPTER XIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO 

THE MINERALS PROGRAM

A. Introduction

This chapter explains how BLM managers and staff carry out tribal consultation and 

coordination when managing onshore Federal mineral resources and when assisting the BIA, 

tribes, and Indian allottees with minerals management under the trust responsibilities of the DOI. 

(The term Indian allottee means any Indian for whom land or interest in land is held in trust by 

the United States or who holds title subject to Federal restriction against alienation.)

The DOI’s Bureau of Ocean Energy Management is responsible for managing the development 

of the nation’s offshore resources. Functions include leasing, plan administration, environmental 

studies, and resource and economic evaluation. The Bureau of Safety and Environmental 

Enforcement enforces offshore safety and environmental regulations.

B. Onshore Energy and Mineral Lease Management Interagency Standard Operating 

Procedures

Significant interagency coordination is required when managing both Federal onshore minerals 

as well as Indian trust mineral resources. Recently, an interagency working protocol was 

executed formally specifying these roles and responsibilities, known as Onshore Energy and 

Mineral Lease Management Interagency Standard Operating Procedures, or Standard Operating 

Procedures (SOP). The purpose of the SOPs, effective October 1, 2013, is to establish common 

standards and methods for creating efficient and effective working relationships to achieve the 

Departmental goal of accurate energy and minerals accountability for onshore Federal and Indian 

leases.

The SOPs describe the responsibilities and information sharing required among bureaus and 

offices under the jurisdiction of the Assistant Secretary, Policy, Management and Budget; 

Assistant Secretary, Land and Minerals Management; Assistant Secretary, Indian Affairs; and 

the OST in carrying out the DOI’s responsibilities for Federal and Indian onshore lease 

management and accounting.

The SOPs were developed by a working group of staff from the BLM, BIA, Office of Natural 

Resources Revenue (ONRR), Office of Surface Mining Reclamation and Enforcement (OSM), 

OST, and Office of Indian Energy and Economic Development (IEED). They explain the sole, 

joint, and final responsibilities assigned to agencies for all activities required for the leasing and 

development of minerals on Indian trust and Federal onshore lands. The SOPs replace earlier 

versions of the Tripartite MOU between the BIA, the BLM, the ONRR (the former Minerals 

Management Service), and OSM.

While formal lines of communication are established in the SOP between the Federal agencies, 

especially between the BLM and the BIA, the BLM does retain the responsibility to 

communicate with allottees regarding mineral development, surface resource protection, and 
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other issues. Guidance provided elsewhere in this handbook (especially Chapters II and III) may 

be utilized to carry out such communications and outreach more effectively.

In cases where Indian tribes have established their own departments for the development of 

mineral resources, they will be responsible for the diligent development of their own mineral 

resources within their reservations. In these cases, the BLM and BIA consultation and 

coordination actions may vary from what is described within the SOP.

1. Division of Responsibilities. The management activities for onshore Federal and Indian 

leases which involve BIA, BLM, IEED, ONRR, OSM, and OST responsibilities and 

information sharing are described in eight attachments to the SOP. The attachments 

contain detailed tables showing the responsibilities of each agency for all onshore Federal 

and Indian mineral development activities. Key attachments—

 Attachment A: Agency responsibilities and information sharing for Indian owned 

fluid minerals that offers a comprehensive listing of actions discussed within the 

SOP regarding the information sharing and division of responsibilities, by agency, 

for managing Indian trust fluid minerals;

 Attachment B: Agency responsibilities and information sharing for fluid minerals 

on Federal onshore lands;

 Attachment C: Agency responsibilities and information sharing for Indian-owned 

solid minerals which, like the section on fluid minerals on Indian lands, sets out 

detailed agency responsibilities assigned to every step in the process of managing 

and developing solid minerals on Indian lands;

 Attachment D: Agency responsibilities and information sharing for solid minerals 

on Federal onshore lands;

 Attachment E: General operating procedures for information sharing by BIA, 

BLM, IEED, ONRR, OSM, and OST to the public, including sharing personally 

identifiable information, and for protecting information that may be proprietary or 

confidential;

 Attachment F: BLM/BIA/ONRR responsibilities and procedures for the Indian 

Mineral Development Act, including administrative responsibilities for BLM, 

BIA, IEED, ONRR, OST, and tribes;

 Attachment G: Responsibilities and procedures of BIA, BLM, and OSM for coal 

leasing and mining operations on Indian lands, including the procedures for 

cooperation and coordination among BIA, BLM, and OSM for the surface and 

resource management of coal mining and exploration on Indian lands; and

 Attachment H: Responsibilities and procedures for renewable energy resource 

development on Indian lands.
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2. Outreach. Agencies have responsibilities under the SOPs for outreach, including 

government-to-government consultation and communication with Indian communities to 

demonstrate the work they perform and to provide customer support. Agencies agree to 

share their outreach schedules with each other for each fiscal year (and updates as 

appropriate) to prevent conflicting information dissemination, to promote efficiencies, 

and to minimize imposition on the resources and time of tribes and individual Indian 

mineral owners. Agencies must provide copies of inquiries from tribes and allottees to 

other affected agencies in a timely manner.

C. Tribal Consultation for Federal Minerals Management Generally

Federal mineral resource management, as with other resource programs, begins with the RMP 

process involving consultation with all applicable tribes. Refer to Chapter IV, Guidance for 

Tribal Consultation in Planning and Decision Support, of this handbook. Consultation must seek 

to ascertain tribal concerns about areas proposed for mineral leasing or development. These 

include areas of traditional use, access to sacred sites, and other locations of cultural sensitivity. 

Off-reservation treaty rights on public lands involving mineral development should also be 

addressed. BLM should protect treaty-based fishing, hunting, gathering, and similar rights of 

access and resource use on public lands while considering the leasing and/or sale of Federal 

mineral resources. BLM is directly involved in the right of access for tribal members as they 

exercise treaty based rights on lands managed by BLM.

A variety of references may be consulted for guidance regarding the planning and development 

of fluid and solid minerals on Federal onshore lands managed by the BLM and tribal 

consultation responsibilities associated with such actions. See MS-1780, Tribal Relations, 

Chapter 1, Section 1.3, Authority, and Section 1.5, References.

In regard to fluid minerals, Onshore Oil and Gas Order No. 1 governs onshore oil and gas 

operations, Federal and Indian oil and gas leases, and approval of operations. Updated versions 

of this order cover procedures for processing applications for permits to drill and the use of 

BMPs in lease development. H-1624-1, Planning for Fluid Mineral Resources, provides detailed 

instructions for complying with the fluid minerals supplemental program guidance for resource 

management planning. It covers procedural directions for analyzing and documenting 

reasonably foreseeable fluid mineral development and the impact of such development on the 

human environment.

Concerning the solid mineral program, regulations at 43 CFR 3461, Federal Lands Review: 

Unsuitability for Mining, reference the central role of land use planning assessments. These 

regulations primarily implement the general unsuitability criteria listed in Section 522(a) of the 

1977 Surface Mining Control and Reclamation Act (30 U.S.C. 1272(a)). During the land use 

planning process and in response to input received from tribes through its consultation process, 

the BLM must assess the unsuitability of Federal lands for all or certain stipulated methods of 

coal mining. Each of the unsuitability criteria is applied to all coal lands with development 

potential identified in the comprehensive LUP or analysis. Comments must be solicited from the 
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public and Indian tribes by notices published in the Federal Register and other means of contact 

and consultation detailed in Chapters IV and V of this handbook. 

Twenty criteria are listed for determining lands unsuitable for all or certain stipulated methods of 

coal mining. These are—

 Number 7: All publically or privately owned places which are included in the NRHP, 

and

 Number 20: Federal lands in a State to which is applicable a criterion (i) proposed by the 

State or Indian tribe located in the planning area, and (ii) adopted by rulemaking by the 

Secretary.

It is clear that thorough and well-documented consultation must accompany this process and the 

regulations at 43 CFR 3461.2-2 refer to the necessity of completing such consultation prior to the 

adoption of a comprehensive LUP.

There are a number of references that may be consulted which provide guidance and policy for 

the management and protection of heritage resources and associated tribal consultation in the 

face of minerals development on Federal lands. The ACHP website lists case studies and 

agreement documents covering minerals projects and compliance timing, consideration of 

alternatives for project location and implementation, consultation with Indian tribes and other 

interested parties, and assessment of impacts on natural and cultural landscapes. The website 

links to the CEQ and ACHP handbook on integrating NEPA and NHPA; Federal Oversight and 

Assistance for Shale Gas Development and Section 106; and other resources for complying with 

Section 106. The ACHP also maintain links to a toolkit which provides tips and advice for 

applicants navigating the NHPA Section 106 process

Under terms of the BLM’s National PA with the ACHP and the National Conference of SHPOs 

(2012) (see copy at WEBSITE), each BLM state executes a protocol agreement with its SHPO. 

These stipulate how Section 106 consultation will take place locally. 

While protocols cannot alter the tribal consultation process specified within 36 CFR 800, local 

consultation procedures can be customized if agreed to by tribes in signed agreements. For 

example, appendix A of Wyoming’s Protocol, commits to consultation and compliance 

procedures specified in numerous coal, oil and gas, and geophysical project-specific 

supplemental MOA and PAs.

D. Tribal Consultation for Federal Minerals Management in Split Estate Situations

The BLM is also involved in the leasing of Federal minerals in split estate situations where they 

lie under Indian trust lands. Appendix A of the SOP addresses procedures for such situations 

involving mineral development. Onshore Oil and Gas Order Number 1 describes the 

requirements for approval of these leases. The order was amended in 2007 by the Oil and Gas 

Gold Book.
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For both fluid and solid mineral development, the BLM is to pursue tribal consultation on 

potential effects of the proposed Federal action as normally pursued in BLM decisionmaking 

processes. In addition, appendix A of the SOPs requires that the BLM consult with the BIA to 

obtain conditions of mineral leasing approval through a surface use agreement prior to 

authorizing the action. The BIA records the surface use agreement with the Land Title and 

Records Office within 30 days after its execution. When mutually agreed to, the BIA may 

assume BLM responsibilities for the surface use agreement and disbursement of any annual 

payments required for the use of the Indian trust surface.

Any authorization for disposal of water produced by a minerals action will be in accordance with 

the terms and conditions of the issued application for permit to drill and with Onshore Order 

Number 7. Depending upon the method of disposal, other Federal agencies such as the 

Environmental Protection Agency may also be involved. For solid minerals, the BLM will use 

BIA reclamation standards for evaluating an operator’s restoration plan. Upon acceptance of 

reclamation actions by the operator, the BLM is to notify the BIA in addition to the operator. 

Attachment G to the SOP addresses coal leasing procedures for split estate situations involving 

Federal minerals and Indian trust surface.

For split estate situations involving Federal minerals and nonfederal surface, such as State trust 

lands and private ownership, the BLM is compelled to satisfy the same procedures as if the 

surface were Federal in regard to NEPA and the NHPA. The 2008 brochure, Split Estate: 

Cultural Resource Requirements on Private Surface—Federal Minerals for Oil and Gas 

Development, describes the common Section 106 process applied to fluid minerals situations,

including the identification of locations of traditional cultural or religious importance to Indian 

tribes. (The brochure can be found via the BLM website.)

In all these split estate situations, the Federal mineral rights are considered the dominant estate, 

meaning they take precedence over other rights associated with the surface property. However, 

the BLM is compelled to show due regard for the nonfederal interests, including tribal, and 

occupy only those portions of the surface that are reasonably necessary to develop the mineral 

estate. 

E. BLM Responsibilities for Indian Trust Minerals Management

Development of mineral leases on tribal lands requires consultation with both the BIA and 

individual tribes. In certain circumstances, the BLM may be required to consult directly with 

Indian mineral owners themselves. BLM employees working in the minerals program need to

have detailed knowledge of the BLM role in managing Indian trust minerals and their part in 

carrying out these responsibilities. They should be aware that their action or inaction can

directly or indirectly impact Indian trust assets, and that Indian lands are very different from 

private, public, or acquired Federal lands. For example, allotted lands and mineral ownership 

can be highly fractionated due to Indian heirship laws, which can make decisions concerning 

mineral resource development very complicated.
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It is important to emphasize that the BLM does not manage or account for trust funds; it manages

lands and mineral resources which generate trust funds. The BLM Indian trust minerals 

responsibility concerns the management of Indian trust assets, which are defined in 303 DM 2.5, 

Principles for Managing Indian Trust Assets, as “lands, natural resources, money, or other assets

held by the Federal Government in trust or that are restricted against alienation for Indian tribes 

and individual Indians.” Potential impacts to trust assets from public land mineral activities 

should be considered during the RMP process.

1. Principles for Managing Indian Trust Minerals. According to 303 DM 2, the proper 

discharge of the Secretary’s trust responsibilities requires that persons who manage 

Indian trust assets do the following.

a. Protect and preserve Indian trust assets from loss, damage, unlawful alienation, waste, 

and depletion.

 BLM has direct responsibilities for mineral operations on Indian trust lands, 

and monitors Indian leases for production verification, inspection and 

enforcement, diligent development, etc. so that the resource is not wasted or 

unduly depleted. BLM also watches for mineral trespass.

 The general goal is to maximize economic gain for tribes and/or allottees.

b. Assure that any management of Indian trust assets that the Secretary has an obligation 

to undertake promotes the interest of the mineral owner and, to the extent it is 

consistent with the Secretary’s trust responsibility, supports the owner’s intended use 

of the assets.

 This requires consultation. Field offices should not assume that economic 

factors are the only ones to consider in determining “best interest.” Consult 

with the mineral owner and use that information to make decisions, which 

must be technically and legally correct and reasonable. If it is Indian allotted 

land, BLM may be consulting with BIA, the fiduciary trust officer, or an 

allottee association. 

 As trustee, the agency makes the final determination, which may at times go 

against the wishes of the tribe or individual mineral owner.

 Document all consultations and explain how BLM arrived at its final decision.

c. Enforce the terms of all leases or other agreements that provide for the use of trust 

assets and take appropriate steps to remedy trespass on trust or restricted lands.

 BLM inspects Indian mineral leases to ensure proper measurement and 

reporting for royalty purposes, inspection and enforcement, etc.

 BLM employees should be aware that revenues from minerals might be the 

only income for an individual Indian beneficiary.
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d. Promote tribal control and self-determination over tribal trust lands, resources, or 

interests.

 Make sure employees have a working knowledge of the ISDEAA Titles I and 

IV.

 Support employment of tribal members under 638 contracts.

 

e. Select and oversee persons who manage Indian trust assets.

 BLM is responsible for selecting personnel to manage Indian trust resources 

and must select personnel with the skills and knowledge to successfully carry 

out the programs and support activities involving Indian trust resources.

 Employees must have an understanding of the trust responsibility and the role 

of a fiduciary and be willing to accept that responsibility and work with tribes 

and individual Indian beneficiaries.

f. Confirm that tribes that manage Indian trust assets pursuant to contracts and compacts 

authorized by the ISDEAA protect and prudently manage Indian trust assets. 

 In carrying out program reviews, BLM conducts oversight of tribes with 638 

contracts to ensure resources are protected.

g. Provide oversight and review of the performance of the Secretary’s trust 

responsibility, including Indian trust asset and investment management programs, 

operational systems, and information systems.

 BLM conducts oversight through periodic reviews [inspections, internal control 

reviews, department reviews, OST reviews] of trust programs, including records 

and automated systems containing trust data. 

h. Account for and timely identify, collect, deposit, invest, and distribute income due or 

held on behalf of beneficial owners.

 Although BLM has no direct responsibility for trust monies, BLM might be 

called upon for supporting documentation at the request of BIA, OST, or 

ONRR.

i. Establish and maintain a system of records that permits beneficial owners to obtain 

information regarding their Indian trust assets in a timely manner and protects the 

privacy of such information in accordance with applicable statutes.

 Such records are verifiable and provide information on how the trust resource 

was managed.
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 Documentation assures information can be provided to beneficial owners 

upon request, while protecting the privacy of those records per applicable 

statutes (BLM guidance should provide enough information that employees 

know whether Indian records/data meet payment card industry (PCI) security 

standards or are publically available).

j. Communicate with beneficial owners regarding the management and administration 

of Indian trust assets.

 BLM should be in communication with the beneficial owners of the trust 

resources regularly. In most offices with Indian minerals responsibility, BLM 

meets on a periodic basis with tribal minerals personnel.

For example, representatives from the BLM Arizona State Office organize quarterly coal

coordination meetings with the Hopi Tribe and the Navajo Nation. Representatives from 

the BIA and OSM attend as well. Participants discuss on a government-to-government 

basis coal-related mining and environmental issues involving the DOI’s management of

the Arizona and New Mexico coal mines located within the Hopi and Navajo 

reservations.

 BLM minerals personnel must understand that the Indian trust programs are 

part of BLM’s mission, and that BLM is not merely doing BIA’s job. The 

trust functions were delegated to BLM by the Secretary or were established by 

law. This puts BLM in the role of a fiduciary, and BLM has the 

responsibilities of a fiduciary in managing trust assets and making decisions 

that may impact trust assets. Not being aware of this might result in 

inadvertent damage to trust assets, resulting in liability to the Government. 

Employees may be held personally liable where it is determined that their 

actions were deliberate.

k. Protect treaty-based fishing, hunting, gathering, and similar rights of access and 

resource use on traditional tribal lands.

 BLM is directly involved in the right of access for tribal members as they 

exercise treaty-based rights on traditional tribal lands managed by BLM.

2. The BLM Role—Indian Trust Minerals. BLM employees must be aware that the 

Federal Government has been held liable where it was found to be in breach of trust. 

This may involve payments to tribes and/or allottees, or may result in new agency 

procedures. Some examples are—

 Cobell v. Salazar: $3.4 billion dollar settlement
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 Assiniboine-Sioux in Montana: BLM Indian Oil and Gas Diligent Development 

Program resulted from court ruling

If there is a question concerning trust management issues, look to statutes, regulations, 

the Departmental Manual, and if not addressed, then go to the Solicitor for advice or 

formal opinion.

Being a trustee requires good communication within the agency, with other agencies, and 

with beneficiaries. Communication with tribes and/or allottees is unlike communication 

with the public. Be cognizant of your obligations as trustee and the requirement to do 

what is in the best interest of the beneficiary.

Keep in mind that each tribe is unique and that the interests of tribes or individual Indians 

may be different and may change over time. Get to know the relationship between 

allottees and their tribe. These may be adversarial or there may be a conflict of interest 

between the tribe and allottees. Know what authority tribes have over allotted lands, if 

any, in a particular instance. Check with BIA regarding these issues.

Become familiar with your local tribe(s) organization—chair, council, executives, 

traditional religious leaders, and so on. Some dates or seasons of the year are not 

appropriate for conducting certain minerals management or development activities. 

Become acquainted with local tribal protocols. It is helpful to subscribe to the local tribal 

paper (if there is one) to keep up politically and socially. Follow local political 

developments; however, your take on the implications may be different because you are 

not part of the tribe. Staff must become familiar with local Indian land ownership 

patterns, especially in split estate situations where the minerals may be Federal and the 

surface owner is a tribe or individual Indian, or vice-versa.

Many allottees may be unaware that BLM can help them. BLM field offices may need to 

meet in a smaller group when consulting with allottees or have a separate meeting for 

allottees so they are not worried about the consequences of speaking out.

BLM has to balance its roles of steward of the public lands and Indian mineral trustee. 

Employees in lands and planning need to be aware of the responsibilities relating to the 

potential impact on trust assets from public land activities. Notify tribes/allottees and 

BIA of the potential or known impacts of Federal land activities and options for 

mitigation. Do not inform tribes of potential impacts to their trust mineral assets late in 

the planning process. If competing land uses might impact tribal mineral interests, field 

offices must consult with tribes early on in the process so that they can become involved 

in the planning stages. 

Staff must keep up to date on what is occurring with trust programs, especially if there 

are problems, new guidance, budget issues, information technology factors, etc. that can 

affect Indian trust management.
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If BLM lands are in a treaty-rights area, employees need to be aware of treaty-based

rights of access on public lands.

Employees must remember that funds used to administer BLM’s trust programs (e.g., 

subactivities where the special project codes “TRST”, or tribe codes are used) are not 

trust funds; they are Federal funds used for trust programs.

3. BLM Personnel Management—Indian Trust Minerals. BLM managers must—

 Ensure that employees have the skills and knowledge necessary to carry out their 

Indian trust minerals duties.

 Devote the resources (budget, people, and equipment) necessary to carry out the 

trust responsibility.

 Know which employees are working in trust management and how much of their 

time is spent on this.

 Emphasize to employees the importance of bringing potential/actual problems or 

issues that may affect their trust work or the way they do their work to the 

attention of their immediate supervisors.

 Make sure human resources support is available. If trust positions become vacant, 

fill them with qualified people.

 Ensure that employees, especially new ones, know they are working with a trust 

asset.

 Make sure employees are aware of the government-to-government relationship, 

and know the office and local tribal protocols for Indian consultation and 

communication.

F. Indian Self-Determination Act

BLM minerals personnel need to be aware of the requirements of Titles I and IV of the Indian 

Self-Determination Act discussed in detail in Chapter II C.4.Title I requires the Secretary to 

contract with tribes for programs and services carried out by the Federal Government for the 

benefit of Indians because of their status as Indians. 

Contracted programs for the BLM include the inspection and enforcement function for 

minerals operations on Indian lands. In New Mexico, the BLM has entered into a 

cooperative agreement with the Jicarilla Apache tribe for improving and coordinating the 

oil and gas inspection program on tribal lands. The agreement improves the coordination 

in planning and programming of these inspections, increases their frequency, and 

provides for a more uniform application of regulations and improved communications 
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between the BLM and the tribe in the performance of their regulatory functions. In 

Alaska, there is a long history of contracting for cadastral survey of individual allotments.

 Tribes can ask to contract for non-Indian programs under title IV, section 403(c) based on 

taking over other activities which are of a special geographic, historical, or cultural 

significance (called nexus programs). Agreements under this authority are sometimes 

called “compacts,” and whole programs could be affected. 

All employees should know that 638 contracts issued under title I are mandatory while compacts 

agreed under title IV are discretionary; however, both are extremely time sensitive. Delays may 

occur because: (1) the request is misdirected or unknowingly delayed by mailroom or other nonprogram personnel or (2) the request sits on the desk of person who is on leave or travel.
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CHAPTER XIV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

CADASTRAL SURVEY PROGRAM

A. Background

The Cadastral Survey Program is a core mission of the BLM responsible for supporting field 

offices by supplying clearly defined boundaries and other boundary and ownership information 

for the protection and proper management of public and Indian lands. Both planning and 

resource programs involve boundary components that may require early involvement of cadastral 

survey land tenure subject matter experts in the early stages of the decision making process. 

Nearly every program requires accurate land boundary knowledge in order to protect the land 

and resources from trespass and unauthorized use. This can be achieved after completing

management of land boundary (MLB) plans, which utilize the standards for boundary evidence 

(SBE) process. By policy, if projects are planned within one-quarter mile of a boundary held in 

trust by the federal government, then the SBE process is required prior to final decisions and 

work on the ground.

BLM either performs the needed cadastral surveys itself or oversees the surveying by others. 

BLM administers the Public Land Survey System, which is the official system for storing public 

land boundary record information. This system includes about 1.3 million linear miles of 

boundary lines of Federal and Indian lands on 385 million acres in the western United States, 

excluding Alaska.

Public lands in the United States have been surveyed into townships and sections since 1785. In 

most states, these surveys contribute to a master title plat (MTP) showing the survey or boundary 

lines. Since 1864 all surveys of Indian lands held in trust by the Federal Government have been 

under the direction and control of the BLM and one of its predecessors, the General Land Office. 

This delegation was codified at 25 U.S.C. 176. The Department’s trust responsibility includes 

the improvement and protection of approximately 56 million acres of land and natural resources 

to improve the quality of life for tribal communities. Establishing Indian land boundaries 

follows the guidance in the BLM’s Manual of Surveying Instructions for the Survey of the 

Public Lands of the United States 2009 and the Department’s Standards for Indian Trust Lands 

Boundary Evidence: A Cadastral Business Practice Standard. The standards were developed 

jointly by the BIA, the BLM, the OST, and the ANCSA corporation representatives.

B. Cadastral Program Role in Managing Trust Assets

The 1994 American Indian Trust Fund Management Reform Act (25 U.S.C. 4001) established a 

State-licensed land surveyor service, titled Certified Federal Surveyor (CFedS), in partnership 

with the BLM cadastral program. It also established other technical roles including a preapproved BIA agency or tribal official or agent, which is an individual who has successfully 

completed the certification process to qualify to perform land description reviews, and tribal 

members and BIA employees who have become proficient in the creation and review of legal 

descriptions. These programs have strengthened BLM/BIA capacities for addressing trust asset 

boundary needs.
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The Office of Special Trust for American Indians (OST) oversees all the trust reform efforts 

within the BLM, BIA, and ONRR. The BLM’s Washington Office Chief Cadastral Surveyor 

provides direction and control over BLM’s Cadastral Survey Program and its functions regarding 

tribal issues. The program’s objective is to better “manage risks and assure proper and efficient 

discharge of the Secretary’s responsibility to trust beneficiaries” by reducing the potential for 

boundary defects.

Proper management of Indian trust boundaries is complicated by the existence of complex and 

confusing land descriptions resulting from inaccurate or inadequate boundary descriptions. The 

BLM Cadastral Survey Program strives to resolve such ambiguities prior to transactions since 

resolution after transactions can be very costly and may involve litigation. The standards for 

boundary evidence (SBE) process for Indian trust lands is a guide for determining when a 

cadastral survey is needed and when a less costly alternative is appropriate.

C. Boundary Evidence

A major focus of the BLM Cadastral Program is the concern for Indian trust lands boundary 

evidence under authority of the American Indian Trust Fund Management Reform Act. 

Boundary evidence is the authenticated documentation used to describe natural or political 

separation that delineates and identifies a tract of land sufficiently to ascertain its actual location 

on the ground. The act enhanced the Department’s management of the Secretary’s trust 

responsibility which specifically relates to Indian trust assets, including land or a natural resource 

held by the Federal Government in trust or that is restricted against alienation. The objectives of 

this guidance are to provide “consistent, timely, efficient and economical assessment of the need 

for boundary evidence relative to Indian trust assets”; expeditiously process Indian trust asset 

transactions; facilitate solutions to Indian trust asset boundary issues; and protect assets from 

boundary conflicts, trespass, unauthorized use, and ambiguous land descriptions. The Cadastral 

Survey Program webpage on the national BLM website provides additional information on 

boundary evidence services.

The American Indian Trust Fund Management Reform Act of 1994 created the OST. The Act 

addressed the federal government and the Interior Department’s management of Indian trust 

funds. It established a collaborative approach between BLM and BIA to engage tribal 

beneficiaries in the management and use of tribal trust assets. This approach recognized five 

major business processes, including cadastral survey. The act also implemented a standard land 

status record system that includes Indian lands, an improved Federal surveyor program to certify 

private land surveyors and tribal surveyors, and a program creating a BLM Indian Lands

Surveyor (BILS) at each of the BIA regional offices to focus on Indian trust survey issues and 

provide on-site assistance at the BIA.

The four possible sources for establishing boundary evidence using the SBE process for tribal 

trust assets are: (1) cadastral land survey by trained professional surveyors; (2) a land description 

review; (3) a chain of surveys review; and (4) physical land inspection concerning unrecorded 

activities. Often the effort produces a boundary assurance report when an actual survey is not 
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performed. Other non-survey techniques which can be used involve reviewing land survey and 

land title records, photography, mapping, and utilizing computer software.

D. Survey Process

The cadastral survey process begins when an Indian beneficiary, a tribe, or the BIA identifies a 

need for survey services and submits an informal request to the BLM. The BLM must determine 

that the request pertains to trust lands and that the interested party would benefit from the 

services. Normally a tribal manager or the BIA initiates a boundary-related task to resolve a 

trespass, manage or protect natural resources, determine precise reservation boundaries for law 

enforcement purposes, or for some other purpose. The BLM develops a cost estimate for the 

solution, and the BIA, in consultation with the tribe, determines funding availability. The BIA 

will incorporate the specific task into an established priority listing for that region. Funds are 

provided by either the BIA headquarters or the appropriate BIA regional office to the BLM 

under an interagency agreement (IA) negotiated by both agencies. Occasionally individuals or 

tribes may provide funds directly to the BLM for the cadastral survey services.

During the performance of a cadastral survey, archaeological and historical sites are not recorded 

or depicted on maps by cadastral survey crews. Cadastral land surveys are available to the 

public online or in BLM public rooms. Restricting public knowledge of the location of heritage 

resources is needed to maintain their preservation. Cadastral survey crews should report any 

findings back to the appropriate BLM cultural heritage specialist for follow-up documentation. 

Once the cadastral survey or SBE reports are complete, the BLM must enter the information into 

official records and submit a written report and digital products or other prepared results to the 

requesting parties. The tribal managers or BIA are ultimately responsible for the outcome of 

their approved land transactions. The standards for boundary evidence (SBE) process is used for 

acquisitions, conversions, transfers, partitions, asset management, donations, ROWs, easements, 

leases, and other land and resource transactions. The tribe or BIA consults with a BLM cadastral 

surveyor, a certified federal surveyor (CFedS), or a pre-approved agency or tribal official or 

agent to determine if boundary evidence is needed and the type of method appropriate for the 

specific occasion. The Fiduciary Trust Model has identified training for BIA employees and 

tribal members in regard to cadastral survey, including training at the BLM NTC.

Generally, the BLM should perform cadastral surveys for all acquisitions and for all 

conveyances, conversions, transfers, partitions, and management activities where improvements 

are anticipated, management involves a larger property, new boundaries are being established, 

boundaries and titles are complex and confusing, litigation is probable, or instances where a 

survey is specifically required.

The needs for survey include establishing accurate boundaries for transfer of ownership, 

resolving ownership and land use disputes, and establishing accurate locations of proposed roads, 

pipelines, or utility lines. The associated extensive fieldwork in conducting a cadastral survey 

also can result in discoveries of unauthorized or previously unknown land uses or damages. 

Thousands of unauthorized use cases have been discovered by BLM/BIA surveys leading to the 
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recovery of millions of dollars in revenue for tribes from unauthorized ROWs and unauthorized 

extraction of oil, gas, and other valuable minerals. Therefore, priority setting by BIA and BLM 

and the tribes is important. High risk situations where significant potential revenues could be

collected are of particular interest in addition to land transactions. The creation of an adequate 

system to identify high risk lands is still a focus of the agencies and tribes.

Despite the sovereign status of tribes exempting them from recording requirements of State laws 

and regulations, they should have their land surveys recorded in the appropriate state or county 

record system so that they are accessible to others; this will facilitate the protection of tribal and 

trust lands. 

All title documents affecting Indian land are recorded in the Indian Land Record of Title. The 

BIA’s Division of Land Titles and Records and its Land Titles and Records Office are the 

official Federal offices of record for all documents affecting title to Indian lands and for the 

determination, maintenance, and certified reporting of land title ownership and encumbrances on 

Indian trust and restricted lands.
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CHAPTER XV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE TO THE 

REALTY PROGRAM (RESERVED)
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Glossary of Terms

-CConsultation: The conduct of mutual, open, and direct two-way communication in good faith to 

secure meaningful and timely participation in the decisionmaking process, as allowed by law. 

See government-to-government consultation for the specific form of tribal consultation.

Coordination: Communication and dialogue between the BLM and Indian tribes involving 

leadership or staffs to increase cooperation between the two parties and the effectiveness of their 

relationship.

-DDirector: Director of the Bureau of Land Management.

-EEthnography: Structured and systematic analysis of the culture of a community or other 

distinctive social unit, through fieldwork-based study with members of the community as well as 

other sources.

Ethnohistory: Study of a cultural group’s past based on various sources, including ethnography, 

oral tradition, linguistics, ecology, and other relevant disciplines.

-FFederally recognized tribes: A federally recognized tribe is an American Indian or Alaska Native 

tribal entity that is recognized as having a government-to-government relationship with the 

United States, with the responsibilities, powers, limitations, and obligations attached to that 

designation, and is eligible for funding and services from the Bureau of Indian Affairs.

Furthermore, federally recognized tribes are recognized as possessing certain inherent rights of 

self-government (i.e., tribal sovereignty) and are entitled to receive certain federal benefits, 

services, and protections because of their special relationship with the United States. At present, 

there are 567 federally recognized American Indian and Alaska Native tribes and villages.

-GGovernment-to-government consultation: The consultation between BLM officials with 

decisionmaking authority and elected tribal officials or those tribal representatives specifically 

delegated by elected tribal officials to engage in such consultation and decisionmaking. It is 

built upon the government to government exchange of information and aims to create effective 

collaboration and informed decision-making. Consultation is the process of identifying and 

seeking input from appropriate tribal governing bodies, considering their issues and documenting 

the manner in which the input affected the specific management decision(s) at issue. 

Consultation is an accountable process that ensures meaningful and timely input by tribal 
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officials into the development of regulatory policies and agency decisions that have tribal 

implications.

Government-to-government relationship: The unique legal relationship between the United 

States and tribal governments.

-IIndian allottee: Any Indian for whom land or interest in land is held in trust by the United States 

or who holds title subject to Federal restriction against alienation.

Indian lands: Any lands title to which is either (1) held in trust by the United States for benefit of 

any Indian tribe or individual or (2) held by any Indian tribe or individual subject to restrictions 

by the United States against alienation.

Indian organization: This includes (1) those federally recognized, tribally constituted entities 

designated by their governing body to facilitate BLM communications and consultation activities

or (2) any regional or national organizations whose board is composed of federally recognized 

tribes and elected/appointed tribal leaders. These organizations represent the interests of tribes 

when authorized by those tribes, such as the National Association of Tribal Historic Preservation 

Officers.

Indian tribe: Any Indian or Alaska Native tribe, band, nation, pueblo, village, or community that 

the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the Federally 

Recognized Indian Tribe List Act of 1994 (Pub. L. 103-454; 108 Stat. 4791; 25 U.S.C. 479a-1.)

Indian trust assets: Lands, natural resources, money, or other assets held by the Federal 

Government in trust or that are restricted against alienation for Indian tribes and individual 

Indians except by acts of Congress. In the case of the BLM, this term usually applies to any trust 

mineral lease (fluids or solids) for which the BLM has responsibilities on or within the 

boundaries of defined Indian lands and allotments, although fiduciary trust obligations may exist 

when the effect of actions on BLM lands reach Indian lands.

Inherently governmental function: As defined by the Federal Activities Inventory Reform 

(FAIR) Act of 1998 and 2003 Office of Management and Budget Circular A-76, these are 

functions that, as a matter of Federal law and policy, must be performed by governmental 

employees and cannot be contracted out. They are functions so intimately related to the public 

interest as to require or mandate performance by government personnel. These activities require 

the exercise of substantial discretion in applying governmental authority and/or in making 

decisions for the government. Inherently governmental functions normally fall within two 

categories: the exercise of sovereign governmental authority or the establishment of procedures 

and processes related to the oversight of monetary transactions or entitlements.
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-MManagement of land boundary: Management of Land Boundary (MLB) Cadastral Program 

strives to incorporate land tenure specialists into consultation processes and products by early 

involvement in planning projects.

-NNative American: Any individual descended from a native group of the Americas, including 

Aleuts, Eskimos, and American Indians who may also be members of federally recognized tribes 

or American Indian and Alaska Native organizations.

Nontrust asset: An asset that is not held in trust by the United States for the benefit of an Indian 

tribe. Examples include natural and heritage resources not on tribal trust lands such as 

reservations and allotments, sacred sites, human remains, and cultural items subject to 

NAGPRA.

-PPolicies that have tribal implications: Regulations, legislative comments, or proposed legislation 

as well as other policy statements or actions that potentially have substantial direct effects on one 

or more Indian tribes, on the relationship between the Federal government and Indian tribes, or 

on the distribution of power and responsibilities between the Federal Government and Indian 

tribes.

Property of traditional religious and cultural importance: A form of historic property as defined 

in 36 CFR 800; a tangible property (district, site, building, structure, or object) that is associated 

with cultural practices or beliefs of a living community that (1) are rooted in that community’s 

history and (2) are important in maintaining the cultural identity of the community. The 

significance of these properties lies in the role that they play in a community’s historically rooted 

beliefs, customs, and practices. This term may be considered synonymous with traditional 

cultural property (TCP; see below).

Proposed land use: Any use of lands or resources, BLM-administered or not, that requires a 

BLM manager’s formal approval, whether proposed by BLM or by an outside applicant.

-RReburial: An action requested of Federal agencies by lineal descendants or Indian tribes 

concerning human remains and/or other NAGPRA “cultural items” that (1) have been repatriated 

from museum collections or (2) have had their custody transferred following an intentional 

excavation or inadvertent discovery.

Repatriation: Transfer of control of human remains, funerary objects, sacred objects, and objects 

of cultural patrimony by museums or Federal agencies to a lineal descendant or culturally 
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affiliated Indian tribe or Native Hawaiian organization in accordance with NAGPRA and its 

regulations at 43 CFR 10.

Reservation: Unless another definition is required by Federal statute or regulation, the area of 

land reserved for a tribe or tribes under treaty or other agreement with the United States, 

executive order, proclamation, Secretarial order, or federal statute.

Reserved rights: Those rights not specifically extinguished through a treaty or agreement. 

Rights may include hunting, fishing, and gathering privileges, or water and other resource use 

guarantees.

-SSacred site: “Any specific, discrete, narrowly delineated location on Federal land that is 

identified by an Indian tribe, or individual determined to be an appropriately authoritative 

representative of an Indian religion, as sacred by virtue of its established religious significance 

to, or ceremonial use by practitioners of an Indian religion; provided that the tribe or 

appropriately authoritative representative of an Indian religion has informed the agency of the 

existence of such a site” (Executive Order 13007, section 1(b)(iii)).

Secretary: The Secretary of the Interior.

Subsistence use: The customary and traditional use by Native Americans of renewable 

resources. For Alaska, specific statutory definition of “subsistence uses” comes from section 

803 of the Alaska National Interest Lands Conservation Act of 1980 and is paraphrased as “the 

customary and traditional uses by rural Alaska residents of wild renewable resources for direct 

personal or family consumption as food, shelter, clothing, tools, or transportation; for the making 

and selling of handicraft articles out of nonedible by-products of fish and wildlife resources 

taken for personal or family consumption; for barter, or sharing for personal or family 

consumption; and for customary trade.”

-TTradition: Longstanding, socially conveyed, customary patterns of thought, cultural expression, 

and behavior, such as religious beliefs and practices, social customs, and land or resource uses. 

Traditions are shared generally within a social and/or cultural group and span generations. They 

represent a continuity of understanding relative to some activity, way of life, or mode of 

expression, which guides particular actions and beliefs. Traditions are not static but evolve to 

reflect changing economic, political, and technological circumstances. This knowledge includes 

an intimate and detailed understanding of plants, animals, and natural phenomena; the 

development and use of appropriate technologies for hunting, fishing, trapping, agriculture, and 

forestry; and a holistic concept or “world view” that parallels the scientific discipline of ecology.

Traditional: Conforming to tradition.
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Traditional cultural property (TCP): A phrase often used in reference to a “ property of 

traditional religious and cultural importance” as defined in the NHPA. The property derives 

significance from traditional values associated with it by a social and/or cultural group such as an 

Indian tribe or local community. It commonly refers to a culturally sensitive area that may 

qualify for the NRHP if it meets the criteria and criteria exceptions at 36 CFR 60.4. See National 

Register Bulletin 38.

Tribal government: The governing body of an Indian tribe as determined by tribal law.

Tribal land: Unless another definition is required by Federal statute (such as NHPA) or 

regulation, land held in trust by the United States on behalf of an Indian tribe, land held by an 

Indian tribe in fee subject to Federal restrictions against alienation, or land held by an Indian 

tribe in fee status.

Tribal notification: A one-way form of communication that provides information, data, or reports 

to Indian tribes by the BLM, leading to tribal consultation if the tribe so requests.

Tribal officials: Elected or duly appointed tribal leader or official designated in writing by an 

Indian tribe to represent the tribe in government-to-government consultations.

Tribal trust resource: Resources held in trust by the United States on behalf of Indian tribes.

Tribe: See Indian tribe.

Trust relationship: The unique relationship between the United States and Indian tribes and 

individual Indians, that is guided by the trust responsibility.

Trust responsibility: The highest moral obligations that the United States must meet to ensure 

the protection of tribal and individual Indian lands, assets, resources, and treaty and similarly 

recognized rights. This responsibility to extend to all Federal agencies. .
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Appendix 1 — Acronyms and Abbreviations

ACEC Area of Critical Environmental Concern

ACHP Advisory Council on Historic Preservation

AIRFA American Indian Religious Freedom Act

ANCSA Alaska Native Claims Settlement Act

ANILCA Alaska National Interest Lands Conservation Act

ARPA Archaeological Resources Protection Act

BIA Bureau of Indian Affairs

BILS BLM-Indian Lands Surveyors

BLM Bureau of Land Management

BMP Best Management Practices

CEQ Council on Environmental Quality

CFedS Certified Federal Surveyor

CFR Code of Federal Regulations

CX Categorical Exclusion

DLA Designated Leasing Area

DOE Department of Energy

DOI Department of the Interior

DM Departmental Manual

EA Environmental Assessment

EIS Environmental Impact Statement

E.O. Executive Order

EPAP Employee Performance Appraisal Plan

FLAME Federal Lands Assistance Management and Enhancement

FLPMA Federal Land Policy and Management Act

FOIA Freedom of Information Act

GIS Geographic Information System

HUB Historically Underutilized Business

IEED Office of Indian Energy and Economic Development

IM Instruction Memorandum

ISDEAA Indian Self-Determination and Education Assistance Act

LUP Land Use Plan

MLB Management of Land Boundaries

MOA Memorandum of Agreement

MOU Memorandum of Understanding

NAGPRA Native American Graves Protection and Repatriation Act
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NCL National Conservation Lands

NEPA National Environmental Policy Act

NHPA National Historic Preservation Act

NPS National Park Service

NRHP National Register of Historic Places

NTC National Training Center

O&C Act Oregon and California Revested and Sustained Yield Management Act

OHV Off-Highway Vehicle

ONRR Office of Natural Resources Revenue

OSM Office of Surface Mining, Reclamation, and Enforcement

OST Office of the Special Trustee for American Indians

PA Programmatic Agreement

PCI Payment Card Industry

PD Public Domain

PEIS Programmatic Environmental Impact Statement

POD Plan of Development

Pub. L. Public Law

RMP Resource Management Plan

ROD Record of Decision

ROW Right-of-Way

SEZ Solar Energy Zone

SHPO State Historic Preservation Officer

S.O. Secretarial Order

SOP (Onshore Energy and Mineral Lease Management Interagency) Standard 

Operating Procedure

Stat. Statute

TCP Traditional Cultural Property

THPO Tribal Historic Preservation Officer

U.S.C. United States Code

WSA Wilderness Study Area

WSRA Wild and Scenic Rivers Act
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Appendix 2 — Implementation of BLM Policy Regarding Payment to Native

Americans for Products Versus Compensation for Their Participation in the BLM’s 

Decisionmaking Processes

MS-1780, Tribal Relations, Chapter 1, Section 1.6, Policy, Subsection. B, Compensation to 

Tribes, states:

“The BLM traditionally contracts for services, including reports or studies, through the BLM acquisition 

and procurement procedures to obtain data and documentation on resources it manages or that may be 

affected by its decisions. Such contractual relationships will continue. 

Upon issuance of this Manual and H-1780-1, the BLM will allow an expansion of compensation to 

include Native American contributions of information, comments, or input into the BLM’s 

decisionmaking processes. When it is in the BLM’s best interest to do so and is necessary to obtain 

information needed for the BLM to make land use decisions, managers may provide, or require that land 

use applicants provide, financial compensation to Indian tribes to help defray their costs for consulting 

with the BLM regarding land use planning or authorizations. Such compensation may cover the costs of 

travel, per diem, time of tribal elders or officials.”

The following procedures distinguish between contracting for products delivered by Indian tribes 

and compensating tribes to help defray the costs of participating and providing input into the 

BLM decisionmaking processes.

A. Policy Regarding Contracting for Products 

1. Consider if Contracting is Appropriate. The BLM should first consider whether 

contracting with tribes and tribal representative is appropriate. The BLM should consider 

contracting when obtaining reports or other products. No restrictions exist that prevent 

the BLM from contracting for the services of qualified Native American individuals, 

firms, or organizations, through the BLM acquisition and procurement procedures to 

produce in-depth reports or other products. Such contracting does not constitute 

consultation in accordance with the MS-1780, Tribal Relations.

When contracting for a product, the BLM manager must fully comply with all Federal 

procurement rules. Where BLM’s contract costs would be reimbursable, any form of 

payment to Indian tribes should be coordinated with affected project applicants 

beforehand. All payment should be directed through the BLM using appropriate Federal 

procurement procedures. The following examples illustrate situations where it may be 

appropriate for the BLM to contract for the information and products described:

a. BLM requests information about traditional cultural practices affecting presentday plant and animal distributions. An interdisciplinary management plan is being 

developed for an area. In assessing current conditions, questions are raised about how 

long the current plant species composition has existed and how past land uses 

including Native American use of fires may have reduced or increased various 

species. The BLM decides to gather information to better understand how humans 
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have changed the environment. Elders of the Indian tribe that historically occupied 

the area agree to share their knowledge of traditional practices that manipulated and 

changed the plant and animal communities if compensated

b. BLM requests assistance in documenting and evaluating a place used for 

traditional purposes. An Indian tribe has informed BLM of a specific place where 

its members have conducted traditional ceremonies for generations (i.e., a traditional 

cultural property (TCP)). From the information provided by the tribe, BLM 

determines that the property is likely to meet the National Register eligibility criteria 

but requests assistance in more thoroughly documenting and evaluating the property 

in the field to meet eligibility documentation requirements as well as meet broader 

management responsibilities under the Federal Land Policy and Management Act. 

The tribe offers the expertise of a traditional practitioner who agrees to accompany 

BLM personnel to the property and assist in its documentation, but only if he is 

paid for his time and travel. 

c. BLM requests tribal participation in preparing written reports or other 

products. An archaeological site is excavated. During consultations with a local 

Indian tribe prior to the excavation, BLM learns that the site figures prominently in 

the tribe’s oral histories and determines that the tribe’s perspective would be a 

valuable addition to the excavation report. The tribe is willing to assist in writing or 

providing information for the report if it is paid for doing so.

d. BLM requests tribal documentation of traditional land uses and resource 

exploitation. A large-scale right-of-way application for a solar development will

result in the removal of large tracts of native vegetation, including Indian rice grass 

and mesquite. Indian tribes have indicated a concern regarding the impacts 

development will cause to these traditional food sources. The BLM decides to 

contract for an ethnographic study of traditional uses of Indian rice grass, mesquite 

beans, and other native plants on the lands potentially affected. Researchers want to 

know how important these resources are to traditional lifeways and current lifestyles; 

whether or not other nearby plant resources could be substituted; and whether 

compensatory mitigation programs involving seeding new areas for these culturally 

important plants is possible. 

e. BLM requests assistance in analyzing or interpreting cultural materials. An 

archaeological site identified during a field inventory contains artifacts unfamiliar to 

the archaeologist. The archaeologist shows the artifacts to local Native Americans 

who recognize them as similar in appearance to objects they use in traditional 

activities. The Native Americans offer to explain the manner in which they use such 

objects if they are paid for this information. If BLM requests such information, 

payment may be appropriate. Interpretations of artifact use and meaning must be 

cross-checked with other ethnographic, historic, and archaeological sources.
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2. Consult Other Offices. Consult other BLM offices for examples of contracts with tribes 

for such products as ethnographic studies, identification of sacred places, documentation 

of the meaning of rock art sites, and traditional land use practices.

B. Policy Covering Compensation for Tribal Input into BLM Decisionmaking 

Processes 

1. Strategies to Follow Which Can Minimize the Need to Provide Compensation for 

Consultation. Although the BLM may authorize compensation to Indian tribes for some 

of their costs associated with consultation, BLM field offices should make every effort to 

minimize the need for such compensation by adhering to the following strategies.

a. Avoid creating attendance difficulties. Whenever possible, the BLM should 

schedule meetings on or near reservations and tribal communities so that tribal 

members can attend without incurring travel and per diem expenses.

b. Utilize technology to minimize travel. If acceptable to the tribe(s) involved and 

technologically feasible for both parties, use Internet conferencing programs to create 

virtual meetings to minimize the need for travel by either party. While not every tribe 

will have such technological capabilities, many tribes are updating their information 

technology capabilities, making such communications possible. 

c. Take advantage of government-sponsored overlapping meetings. BLM field 

managers should take advantage and meet with tribal officials and other 

representatives when tribes will be attending meetings that BLM managers and staff 

would also be attending. Examples include Congressional Field Hearings, State 

legislative sessions, or Secretarial or Congressional field visits. By coordinating 

schedules, the BLM and tribes may be able to meet for a portion of a day while their 

representatives are readily available. However, do not attempt to attend tribally 

sponsored meetings unless invited to participate.

2. Goals in Providing Compensation. The goals of the BLM providing, or requiring that 

proponents provide, compensation for tribal participation in BLM decisionmaking 

processes are: (a) to obtain information necessary to complete compliance reviews and 

(b) to facilitate tribal reviews of materials in order to meet project deadlines.

3. Actions/Undertakings for Which Compensation May Be Provided.

a. Large-scale undertakings initiated by outside parties, requiring an 

environmental impact statement (EIS). Such projects are frequently established on 

a cost recovery basis. In these circumstances, the proponent may either make 

arrangements for payments directly with the tribes for their costs or the BLM may use 

cost recovery funds to compensate or reimburse the tribe(s) for reasonable expenses 

incurred. For these cases, the BLM must inform the proponent regarding the 

requirements for work and services that must be performed and the products 
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expected. Compensation would be provided for travel costs and per diem to attend 

consultation meetings.

If contracts are required for ethnographic studies to provide information and insight 

on traditional lifeways, resources, TCPs, subsistence resources, traditional hunting,

fishing, or gathering concerns, or sacred sites that could be impacted by the proposed 

project, the proponent must award contracts to obtain BLM’s specific information 

needs. 

Cost reimbursable accounts may be used to cover BLM staff time, travel expenses, 

and per diem required to carry out tribal consultation when processing an application 

or when inspecting and monitoring the public lands covered by an authorization.

b. Small-scale undertakings initiated by outside parties, usually analyzed and 

approved with environmental assessments. Such actions/undertakings might 

include oil and gas, range, and, timber projects, etc. It is expected that tribal 

consultation will already have taken place at earlier lease approval stages or the land 

use planning stage. 

Nevertheless, the BLM must add a clause or term to existing permits or lease 

authorizations that informs operators/licensees/permittees that if tribal consultation 

issues arise, the operator/licensee/permittee may be required to pay for additional 

tribal consultation. The BLM’s retained rights under the oil and gas leasing process 

allow it to condition development so as to protect the environment, including heritage 

resources and those resources subject to tribal consultation. Rights granted on leases 

are subject to Secretarial orders, Executive orders, and manuals and handbooks when 

not inconsistent with lease rights granted. Both section 6 of leases forms and 

regulations (43 CFR 3101.1-2) allow reasonable measures to be required to be taken 

to minimize adverse impacts to the environment and other resources. MS-3101 also 

established that under the BLM’s reserved authority, it may impose additional 

mitigation measures beyond lease stipulations to ensure that proposed operations 

minimize adverse impacts to other resources so long as consistent with lease rights 

granted. Interior Board of Land Appeals (IBLA) decisions (see e.g., Yates Petroleum 

Corp., 176 IBLA 144, 155 (2008)) also recognize the BLM’s rights to condition postlease development pursuant to the 43 CFR 3101 regulations and the unnecessary or 

undue degradation clause, holding that the BLM can require post-lease conditions of 

approval that were not addressed in original lease stipulations.

Thus, operators/licensees/permittees may be required to pay for tribal consultation 

and arrange for such payments through their own contracts or other agreements 

directly with the tribe(s). Compensation would be provided for travel costs and per 

diem to attend consultation meetings.

For these cases, the BLM must inform the proponent regarding the requirements for 

work and services that must be performed and products expected. If contracts are 
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required for ethnographic studies to provide information and insight on traditional 

lifeways, resources, TCPs, subsistence resources, traditional hunting or fishing 

concerns, or sacred sites that could be impacted by the proposed project, the 

proponent must award contracts to obtain BLM’s specific information needs.

c. BLM-initiated projects (new resource management plans (RMP), RMP updates, 

BLM-instigated developments). In these cases, the BLM itself, through the 

benefitting subactivity, may pay for tribal compensation. Subject to approval in 

advance by the field manager and subject to the availability of funds, the BLM may 

provide compensation to defray the costs of travel, per diem, time, or the preparation 

of reports, documentation, and correspondence. Compensation should be provided 

from the BLM to tribes in accordance with the terms and conditions of assistance 

agreements, MOAs, or contracts executed in advance.

4. Third Party Participation. The BLM will not provide compensation to third parties 

who participate in meetings and discussions between the BLM and Indian tribes. 

Compensation may only be considered for Indian tribal participants in the governmentto-government consultation process.

5. Reasonable Limits for Compensation Provided by Outside Parties. The BLM will 

not intervene to arbitrate or settle disputes between applicants and tribes over agreements 

in which the BLM does not participate. These agreements may include those for 

contracted goods and services or compensation for participation in the consultation 

process. The BLM may only require that applicants make a reasonable and good faith 

effort to acquire goods and services necessary or reasonable for the BLM to make its 

decision in a timely manner. However, the BLM must document the following and 

continue with its decisionmaking process if the BLM determines that: tribal demands for 

compensation exceed prevailing standards and negotiations break down on this issue; 

specified goods or services were never delivered; or the goods or services fail to meet 

agreed upon deliverables standards.

6. Format and Provisions for Agreement Documents Establishing Compensation for 

BLM-Initiated Projects (New RMPs, RMP Updates, and BLM-Instigated 

Developments). Agreement documents with tribes in which the BLM helps to defray 

consultation costs for BLM-initiated projects will consider tribal consultation input as 

fees for professional services. Amounts provided may not fully cover tribal expenses but, 

like honoraria, represent a sign of respect.

If the BLM concludes that consultation costs to a tribe constitute a barrier to effective 

consultation and that an agreement document is appropriate, a lump sum payment on a 

per project basis directly to the tribe itself is allowed. Tribal governments will be 

responsible to distribute the funds to the individual tribal members who have participated 

in the consultation effort. Individual tribal members will make their own travel 

arrangements. Federal Government per diem rates do not apply. No receipts are required 
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on the part of the BLM. Tribal representative will make their own travel arrangements

and be responsible for their own taxes.

The agreement document should contain the following sections and these suggested 

provisions.

a. Objective. The scope of the project should clearly be defined here in terms of final 

outcomes anticipated, the role of the parties, and the specific anticipated uses of 

funding.

b. Project management plan. Project proposals should be incorporated here.

c. Term of agreement. Agreements should be multiyear, usually valid for up to 5 

years.

d. Financial support. Funding sources, carry-over provisions, and any cost sharing 

provisions must be specified. The BLM may provide compensation for consultation 

at the discretion of the manager and in consideration of relevant factors, such as the 

complexity of the project, travel costs, etc. Guidelines for consideration include the 

following suggested maximum amounts per project—

 New RMPs—up to $1,000 per tribe,

 RMP updates—up to $500 per tribe, and

 BLM-instigated developments—up to $500 per tribe.

e. Deliverables and reports. Care must be taken to describe in detail the expected 

deliverables or products to be provided to the BLM. Such descriptions are necessary 

for the BLM to judge whether or not useful information that met the specified format 

and content for products was delivered satisfactorily. Such deliverables might 

include detailed written NHPA Section 106 or NEPA comments; participation in 

meetings; formal Section 106 or NEPA verbal comments; and documentation of 

traditional uses, resources, access, or presence of sacred sites or TCPs within areas 

likely to be affected by proposed actions or proposed changes in land use.

The Montana State Office transferred funds to the Crow tribe who agreed to host 

intertribal workshops. These workshops focused on producing individual, formal tribal 

consultation protocols/agreements for BLM field offices in Montana, the Dakotas, and 

Wyoming. Twenty-two Indian tribes were invited to attend. The goal is to negotiate 

consultation protocols that can define more efficient and effective consultation 

procedures between the BLM and tribal governments and/or their designated 

representatives. The Crow tribe used the payments to cover the costs of motel 

accommodations and meeting room expenses. As “host”, the Crow tribe received 

funding from the BLM via an Assistance Agreement and then distributed funds to 
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participating tribal representatives to reimburse them for costs of mileage and per diem 

expenses. Funds were made available by the Crow tribe to be handed out at the 

beginning of each meeting for all participants attending the workshops.
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Appendix 3 — Spreadsheet/Database to Document BLM-Indian Tribal Consultation

The BLM’s administrative record must contain the complete documentation of BLM-tribal 

consultation for each land use plan and action approved by the line officer. Such documentation 

must include copies of correspondence, telephone logs, meeting notes, emails, and reports 

exchanged between the parties. The administrative record of tribal consultation must be 

assembled separately from the record of other obligations to engage the public more generally.

A summary of the consultation history for each tribe should be captured in a spreadsheet/

database format in chronological order. Figure A3-1 provides an example of such 

documentation. In the example, the “Contacting BLM Office” column should list the individual 

BLM field office engaged in the consultation along with point of contact information for the 

BLM individual(s) carrying out the consultation. The “Tribe” column must list the tribe 

involved along with the mailing address, email, and telephone information for the tribal officials 

and staff who are being contacted. The “Current Status” column provides space to summarize 

the most up-to-date issues, upcoming meetings, deliverable dates for reports or interviews, or a 

brief summary of issues of most interest to tribes. The “Contact History” column must provide 

dates for email, letters, documents, telephone calls, field trips, etc. The “Tribal Response”

column briefly summarizes tribal responses or input to documents, meetings, phone calls, or 

other forms of communication. BLM staff must keep this spreadsheet up to date.

The spreadsheet is a helpful summary, but the complete consultation record, including all 

documents must be maintained in folders for each individual tribe. The courts have ruled that 

grouping tribes together in the administrative record is unhelpful. Indian tribes are not 

interchangeable. Consultation with one tribe does not relieve the BLM of its obligation to 

consult with any other tribe.

Contacting BLM Office Tribe Current Status Contact History Tribal Response

Figure A3-1 Example of a spreadsheet/database to document tribal consultation.
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Appendix 4 — Coordination of NEPA, NHPA 106, and Tribal Consultation

National Environmental Policy Act

(NEPA)

National Historic Preservation Act 

(NHPA) Section 106 Tribal Consultation Making It Work

Project Formulation

 Identify the purpose and need for action

 Conduct internal scoping(iv)

 Describe the proposed action and 

preliminary alternatives

 Identify preliminary issues for analysis

 Determine appropriate form of NEPA(i)

compliance: Categorical Exclusion 

(CX)(ii), Determination of NEPA 

Adequacy (DNA), Environmental 

Assessment (EA)(iii), or Environmental 

Impact Statement (EIS)(i)

 Develop a plan to involve the public

Initiate 106 Process

 Establish undertaking and potential 

to cause effects 

 Identify potentially affected State 

Historic Preservation Officers 

(SHPO) and/or Tribal Historic 

Preservation Officers (THPO), tribes 

and consulting parties

 Develop a plan to involve the public 

 Begin Section 106 consultation per 

established protocols when 

applicable

 Establish list of Indian tribes 

potentially affected

 Develop a plan to consult 

with affected Indian tribes

 Notify Indian tribes of 

opportunity to consult

 Incorporate NHPA Section 

106 and tribal consultation 

into the overall project

schedule and tracking system

External Scoping

 Publish/post notification of scoping 

(notice of intent, press release, website, 

etc.)

 Conduct scoping

 Refine issues for analysis

 Define scope of analysis

 Refine alternatives

 Identify data needs

Identify Historic Properties

 Refine Area of Potential Effects 

(APE) in consultation with 

SHPO/THPO 

 Seek information from consulting 

parties on historic properties in the 

APE

 Notify the public and invite their 

comments

 Review new and existing information 

and identify data gaps 

 Develop strategy to complete 

resource identification

 Initiate staff level and 

government-to-government 

consultation with Indian 

tribes.

 Gather information from 

Indian tribes to assist in 

identifying properties of 

religious and cultural 

significance 

 Include the project in all staff 

level and government-togovernment consultation 

meetings

 Include language in any 

notification of scoping 

(including notice of intent) 

stating it partially fulfills NHPA 

106 public notification 

requirements

 Ensure all public contacts and 

scoping meetings include 

NHPA information
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National Environmental Policy Act

(NEPA)

National Historic Preservation Act 

(NHPA) Section 106 Tribal Consultation Making It Work

External Scoping (continued)

 Use scoping and tribal 

consultation to identify historic 

resources and key issues, 

especially landscape level 

concerns that could pose 

challenges

 Document everything

Prepare Preliminary/Draft NEPA Document

 Include:

 Proposed Action

 Alternatives

 Affected Environment

 Environmental Consequences (direct, 

indirect, and cumulative effects)

 Mitigation

 Complete resource identification and 

eligibility determination, make 

determination of effect or no effect, 

notify all consulting parties and invite 

their views

 Consider views of consulting parties 

and public on effects 

Assess Adverse Effects

 Assess and determine whether 

effects are adverse or not. Invite the 

Advisory Council on Historic 

Properties (ACHP) to participate as 

appropriate and according to the 

state protocol under the 

programmatic agreement (PA)

Resolve Adverse Effects

 Consult to resolve potential adverse 

effects; prepare draft memoranda of 

agreement (MOA) or PA

 Continue consultation with 

Indian tribes to complete 

identification of resources 

and effects of proposed 

action

 Resolve potential adverse 

effects to resources of 

concern; invite tribes to be a 

party to the MOA or PA that 

will conclude the NHPA 106 

process

 Include any information 

obtained from the NHPA 

Section 106 and tribal 

consultation in the draft NEPA 

document sections on 

affected environment, 

impacts, and mitigation for 

public review and comment 

and to help meet Section 106 

documentation requirements

 Include the draft MOA or PA 

in the appendix of draft NEPA 

document, protecting sensitive 

information from tribes

 Update the public on the 

status of NEPA, NHPA 

Section 106 and tribal 

consultation on state and field 

office websites

 Keep tribes informed by 

including on the agenda at all 

regular meetings with tribes
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National Environmental Policy Act

(NEPA)

National Historic Preservation Act 

(NHPA) Section 106 Tribal Consultation Making It Work

 

Release Preliminary/Draft NEPA Document

 Publish/post notification of draft (notice 

of availability (NOA), press release, 

website, etc.)

 Receive comments on the draft

 Send draft MOA/PA and 

documentation required by NHPA 

Section 106 to SHPOs, tribes, and 

consulting parties 

 Consult on the proposed 

MOA/PA that will conclude 

the Section 106 process 

and determine whether 

tribes will be primary 

signatories or concurring 

signatories

 State that notices of draft 

NEPA documents (including 

NOA) partially fulfills 

requirements of NHPA 

Section 106; combine mailing 

of draft NEPA document with 

coordination of draft MOA/PA 

 Review NEPA comments to 

highlight unresolved cultural, 

historic, and/or tribal issues

Prepare Final NEPA Document

 Respond to comments

 Modify draft NEPA document as

necessary

 Respond to comments

 Modify draft MOA/PA as necessary

 Respond to tribal comments 

and concerns

 Include the draft final MOA or 

PA in the appendix of the final 

NEPA document

Release Final NEPA Document

 Publish/post notification of final NEPA 

document (NOA, press release, website, 

etc.)

 Sign MOA/PA (prior to the decision 

record or record of decision). 

Sign Decision Record

 Document the decision  Include NHPA Section 106 

mitigation in the decision 

record

(i) For the purposes of this side-by-side, the NEPA process has been generalized into stages without consideration for specific type of NEPA documentation.

(ii) Section 106 of the NHPA and tribal consultation provide statutory obligations independent of the requirements of NEPA. Because CXs and DNAs provide limited opportunities for public 

and tribal involvement, effective coordination between the NEPA process and Section 106 of the NHPA and tribal consultation may not always be possible.

(iii) Some form of public involvement is required in the preparation of all EAs; the type and extent is up to the discretion of the authorized officer. Examples include: external scoping, public 

notification before or during preparation of EA, public meetings, or public review and comment on EA prior to it being finalized. As a consequence, Section 106 of the NHPA and tribal 

consultation may require more public involvement and consultation than is afforded by an EA.

(iv) Note that the newly revised Management of Land Boundary Cadastral Program strives to incorporate land tenure specialists into consultation processes and products by early 
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National Environmental Policy Act

(NEPA)

National Historic Preservation Act 

(NHPA) Section 106 Tribal Consultation Making It Work

involvement in planning projects. These specialists should be incorporated into planning teams whenever there is a need for gathering, interpreting, and presenting spatial and land status 

data.
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Appendix 5 — Example of Contents for Tribal Consultation Strategy

A tribal consultation strategy can facilitate communication among all those engaged in the 

consultation process. Such strategies may be simple or elaborate depending upon the project, 

those engaged in the project and the complexity of the process (for example, multiple agencies 

and many tribes). Strategies should clearly identify the roles and responsibilities of those 

involved in consultation. The following template and examples may be adopted or adapted as 

needed.

Introduction to the Strategy: Provide background and the reasons for developing a consultation 

strategy.

For example: 

 Introduce the project 

 Briefly reference the major authorities for tribal consultation on this project (e.g., 

National Historic Preservation Act (NHPA), National Environmental Policy Act (NEPA),

Federal Land Policy and Management Act (FLPMA), relevant Executive orders, and 

other applicable authorities).

Purpose: What is the purpose of this strategy? 

For example:

 The tribal consultation strategy will facilitate internal and external communication and 

help ensure informed and effective consultation among all parties.

Goals: What are the goals of this strategy?

For example: 

 Coordinate internal communication so that all agency parties, including relevant staff and 

managers at every level engaged with the project, are informed as necessary and so that 

any manager engaged in consultation is fully informed of the issues.

 Establish expectations and roles and responsibilities of those key individuals involved in 

the project.

 Coordinate external communications among agency and federally recognized tribes so 

that—

o All parties are fully informed about the project and its developments from initial 

planning through construction; 

o The agency establishes an understanding of how individual tribes prefer to receive 

information and updates and how to engage in consultation; 
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o Information to tribes is conveyed in a timely and respectful manner; 

o Tribes are provided ample opportunity to make consultation as meaningful as 

possible, participate in informal dialog and information sharing as well as formal 

government-to-government consultation, convey their views and issues, and 

influence the decisions; and 

o Agencies meet their obligations to comply with laws, regulations, and policies 

governing tribal consultation and can demonstrate a reasonable and good faith 

effort to do so.

 Consider other goals that may be appropriate to the project.

Target Audiences (Internal and External): Who are the key players in tribal consultation 

process? What are their roles and responsibilities?

For example:

 Identify the potentially interested federally recognized tribes:

o Who are the current tribal leaders for official correspondence and government-togovernment consultation and what is their contact information? 

o Which tribes have a Tribal Historic Preservation Officer? What is his/her name 

and contact information? 

o Which tribal staff or tribal members are likely to be concerned with the project? 

o Does the tribe have a designated point of contact for the project or for specific 

issues (e.g., lands issues, economic development, etc.)? 

o Make sure all correspondence is appropriately addressed to the tribal leader and 

the designated point of contact, and copied to any other relevant staff.

 Find out if there are potentially interested Native American groups that are not federally 

recognized:

o Who are they and how should they be approached since government-togovernment consultation is neither mandated nor appropriate? 

o Contact and coordinate with these groups through the NEPA process and comply 

with presently established state and local practices.

 Identify the BLM personnel likely to be engaged in the consultation process:

o Who is the authorizing officer, decision maker, or other official with primary 

government-to-government consultation responsibilities? 

o Who are other officials likely to be engaged (e.g., Director, state director, other 

local offices)? What are their roles? 
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o Who are the key staff (project manager, tribal liaison or staff lead for tribal 

consultation; other specialists; other staff at other levels of the organization)?

What are their responsibilities? 

 Identify the proponent and the third-party contractor for the project:

o Who are their key contacts for lands, fisheries, natural resources, cultural or other 

tribal concerns? 

o What is their contact information? 

o What are their roles and responsibilities? 

 Determine who or what individuals, agencies, or others should be part of the consultation 

plan:

o When and how should these individuals/entities be involved? 

Key Messages: What do you want to say to each of your audiences? What do they need to know 

and understand? Develop key messages for consistency among BLM managers and staff.

For example: 

 What are the goals of consultation (to make consultation meaningful; to develop

relationships; to improve outcomes for all)? 

 What contribution can tribes make to the NEPA, FLPMA, Cadastral Survey, Standards 

for Boundary Evidence Certificate(s), or Section 106 processes? 

 What are the key opportunities for tribes to participate in the project? What are the points 

in the process where tribal engagement is most valuable? How do these relate to project 

timelines and decisions? 

 What can the BLM do to facilitate tribal participation? 

 What is the role of delegated authority in the consultation process? Do the various parties 

to the process understand that role? 

 What decisions are anticipated along the way? When will they be made? And by whom? 

 What are the main points about the project that tribes need to know, and what are some of 

the constraints on the project (consider time, location)? 

How do you intend to accomplish communication goals? 

For example: 

 Identify the individual tribes’ preferred means of communication and consultation.
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 Develop internal communication protocols and tracking mechanisms to ensure all 

managers and staff remain current and informed regarding tribal concerns and issues, and 

are consistent in their communications with tribes.

 Develop benchmarks and timeframes for consultation, coordinate with the NEPA, NHPA 

Section 106, cadastral survey, standards for boundary evidence certificate(s), or right-ofway application processes.

 Maintain confidentiality of tribally sensitive information to the maximum extent possible.

 Make sure to continue and document your outreach efforts even in the face of nonresponsiveness from individual tribes.

Tactics: What do you need to do to implement strategies and achieve goals? 

For example: 

 Determine what official correspondence must be prepared, and when should it go out:

o Start with a letter inviting consultation and conveying key messages.

o What are the other points in the process when you need to send letters and invite 

consultation, including face-to-face meetings? 

o Close with a letter to each tribe thanking the tribe for their participation, 

identifying their issues, and how these concerns were addressed.

 Develop a system for tracking all communication:

o Each communication with tribes—letters, meetings, phone calls, field trips, 

formal meeting and staff—should be documented in a correspondence record 

form or other appropriate log.

 Ensure timely and appropriate follow-up to tribal letters, calls, requests, and issues raised:

o Consider using a centralized tracking system that will record all contacts, 

requests, and follow-up actions needed.

o Designate a point-of-contact (may be a contractor) to maintain the tracking 

system and to identify all follow-up actions needed (response letters, materials 

requested, meetings requested, issues raised); to report regularly to staff and 

management; and to make sure responses are made in a timely manner.

 Integrate Section 106 invitations to consult with the NEPA outreach process.

 Use all appropriate communication tools to ensure frequent and current information flow 

among various participants: agency, tribes, proponent, consultants: 

o Include letters, meetings, field trips, telephone, email, web, personal 

communications.

o Document all communications.
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 Provide tribes the opportunity to review agency consultation notes and records to ensure 

correct understanding of tribal concerns and requests.

 Establish the best possible administrative record documenting all efforts at consultation 

and interaction.