DRAFT TRIBAL CONSULTATION PLAN FOR THE 

GLEN CANYON DAM ADAPTIVE MANAGEMENT PROGRAM, 

INCLUDING 

THE PROGRAMMATIC AGREEMENT ON CULTURAL RESOURCES

Prepared by Dean Suagee 

Hobbs, Straus, Dean & Walker, LLP 

Attorney for the Hualapai Tribe 

Submitted to 

Loretta Jackson, Tribal Historic Preservation Officer 

Hualapai Tribe 

Department of Cultural Resources 

P.O. Box 310 

Peach Springs, AZ 86434 

May 6, 2003 
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Contents 

Introduction 

1. Scope and Purpose of the Tribal Consultation Plan 

A. Relationship of this Consultation Plan to the Adaptive Management Program 

B. Relationship to the Programmatic Agreement and Historic Preservation Plan 

C. Relationship of this Consultation Plan to Tribal Law 

2. Legal Basics for the Federal Government’s Relations with the Tribes 

A. Tribal Sovereignty and Trust responsibility 

(1) Hualapai Reservation Boundary 

(2) Navajo Reservation Boundary 

(3) Havasupai Reservation Boundary 

B. Government-to-Government Relationship 

3. Background on Tribal Government Involvement regarding the Operation of Glen 

Canyon Dam 

A. Tribal Roles in the Environmental Impact Statement (EIS) 

B. Tribal roles in the Programmatic Agreement (PA) 

C. Tribal Interests Reflected in the Final EIS 

D. Tribal roles in the Adaptive Management Program (AMP) 

E. Tribal Commentaries on Experiences with Consultation 

4. Definition of “Consultation” for This Plan 

5. Goals and Expectations Consultation 

A. Adaptive Management Program 

B. Programmatic Agreement and Historic Preservation Plan 

6. Principles for Consultation with Tribes 

A. Know the Tribes 

B. Know the Legal Requirements 

C. Build On-Going Consultative Relationships with the Tribes 

D. Institutionalize Consultation and Collaboration Procedures 

E. Contact Tribes Early and Allow Sufficient Time for Consultation 

F. Establish Training Programs for All Agency Staff on Consultations with 

Tribes 

G. Maintain Honesty and Integrity 

H. View Consultation as Integral 

7. Legal Requirements for Certain Kinds of Consultations 

A. NEPA Consultation 

B. NHPA Consultation 

C. NAGPRA Consultation 

D. ARPA Consultation 

E. Endangered Species Act 

F. Tribal Laws 
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(1) Hualapai Laws 

(2) Navajo Laws 

(3) Havasupai Laws 

8. Protocols for Different Types of Consultation 

A. Ongoing Consultative Relationships 

B. Consultation in Regularly-Scheduled Meetings 

(1) Kinds of Meetings 

(2) Generally Applicable Provisions for Meetings 

9. Protocols for Consultation for Compliance on Specific Issues 

A. Explanation of Categories of Places/Resources and Actions 

B. Categories of Actions Subject to this Consultation Plan 

(1) Kinds of Federal Actions that Trigger Consultation 

(2) Consultation to determine whether to consult 

C. Protocols for Categories of Places and Resources 

(1) NEPA Consultation 

Protocol (a) – NEPA documents 

(2) Historic Properties – NHPA Consultation 

Protocol (b) – Actions addressed in the HPP 

Protocol (c) – Actions not addressed in the HPP 

(3) Sites Protected by NAGPRA – Human Remains and Cultural Items 

Protocol (d) – Inadvertent discoveries 

Protocol (e) – Intentional excavations 

(4) Sites protected by ARPA – Archaeological Resources 

Protocol (f) – Archaeological resources on federal lands 

Protocol (g) – Archaeological resources on tribal lands 

(5) Sacred Sites subject to AIRPFA and Executive Order 13007 

Protocol (h) – Indian sacred sites 

10. Confidentiality 

11. Funding of Tribal Participation and Consultation 

12. Measuring and Tracking Consultation 

13. Dispute Resolution 
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INTRODUCTION

 The Grand Canyon is a place of great religious and cultural importance for the 

Indian tribes of the region, including the Havasupai Tribe, Hopi Tribe, Hualapai Tribe, 

Kaibab Paiute Tribe, Navajo Nation, San Juan Southern Paiute Tribe, Shivwits Paiute 

Tribe, Southern Paiute Consortium, and Zuni Pueblo. (The Kaibab Paiute Tribe and 

Shivwits Paiute Tribe participate in this Consultation Plan through the Southern Paiute 

Consortium.) All of these Tribes possess a wealth of traditional knowledge about the 

Grand Canyon and the Colorado River, knowledge derived over many generations. 

 The federal government has a unique relationship with Indian tribes: the federal 

government supports the right of tribes to exercise self-government and has obligations 

as a trustee for Indian lands and natural resources. The doctrine of the trust responsibility 

must be taken into account when federal agencies take actions that affect Indian trust 

lands and other natural resources, including actions that are subject to generally 

applicable federal laws, such as the National Environmental Policy Act (NEPA). In 

addition, tribes have rights under certain federal laws that were enacted to protect historic 

places and other cultural resources and the graves of their ancestors, including the 

National Historic Preservation Act (NHPA), Native American Graves Protection and 

Repatriation Act (NAGPRA), and Archaeological Resources Protection Act (ARPA). 

These federal laws apply to many places within the corridor of the Colorado River. 

These federal statutes reflect the public interest in protecting such places, but they also 

acknowledge that Indian tribes often regard such places as important for reasons different 

from those of the general public – for Indian tribes, many of the places protected by these 

statutes are sacred. This is acknowledged by the Bureau of Reclamation in the Final 

Environmental Impact Statement on the Operation of Glen Canyon Dam (March 1995) 

(herein “Final EIS” of “FEIS”): “The Colorado River, the larger landscape in which it 

occurs, and the resources it supports are all considered sacred by Native Americans.” 

Final EIS at p. 141. 

 In addition to the federal statutes, the reservations of two tribes, the Hualapai 

Tribe and the Navajo Nation, are bordered by the Colorado River within the Grand 

Canyon, and the reservation of the Havasupai Tribe is located on a side canyon that can 

be accessed from the main corridor of the River. The governmental authority of these 

tribes must be respected by all of the stakeholders in the Glen Canyon Adaptive 

Management Program (AMP). This means that for activities that occur within 

reservation boundaries, compliance with the requirements of federal law is not enough – 

persons who seek to carry out activities within reservation boundaries must also comply 

with any applicable tribal laws. As such, tribal authority within reservation boundaries is 

much more than the right to be consulted, but rather the authority to prohibit activities by 

withholding consent or to regulate such activities by granting permission subject to 

certain conditions. 
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1. SCOPE AND PURPOSE OF THE TRIBAL CONSULTATION PLAN

 There are multiple reasons for federal agencies to engage in consultation with 

Indian tribes. This Tribal Consultation Plan (herein “Consultation Plan”) seeks to 

address many of these reasons, especially those based on the National Historic 

Preservation Act and the Grand Canyon Protection Act. 

 The Grand Canyon Protection Act (GCPA) requires the Secretary to establish and 

implement long-term monitoring programs and activities to ensure that Glen Canyon 

Dam is operated “in such a manner as to protect, mitigate adverse impacts to, and 

improve the values for which Grand Canyon National Park and Glen Canyon National 

Recreation Area were established, including, but not limited to natural and cultural 

resources and visitor use.” Grand Canyon Protection Act (GCPA), Pub. L. No. 102-575, 

title XVIII, §§1802, 1805. The GCPA also expressly requires that research and longterm monitoring programs and activities be established and implemented “in consultation 

with” Indian tribes, as well as in consultation with the Secretary of Energy; the 

Governors of Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming; 

and “the general public, including representatives of academic and scientific 

communities, environmental organizations, the recreation industry, and contractors for 

the purchase of Federal power produced at Glen Canyon Dam.” GCPA §1805(c). While 

the GCPA thus expressly requires consultation with the Tribes, it does not provide any 

explicit direction on how such consultation should be conducted, nor on how consultation 

with the Tribes may need to be different from consultation with the other kinds of 

persons and entities listed in GCPA section 1805(c). This Consultation Plan explains 

how consultation with Indian tribes is different from consultation with other stakeholders 

and provides direction for federal agencies on how to conduct consultation with the 

specific Tribes that are concerned about the impacts of the operation of Glen Canyon 

Dam on the natural and cultural resources in Grand Canyon and the Glen Canyon 

National Recreation Area downstream from the Dam. 

 The overall purpose of this Consultation Plan is to provide a framework in which 

the representatives of federal agencies engaged in the Glen Canyon AMP and in the 

management of cultural and natural resources within the River corridor and the 

representatives of tribal governments can interact in respectful and constructive ways, so 

that the rights and governmental status of the tribes are honored and so that the traditional 

knowledge of the tribes can be brought to bear in the design and implementation of the 

AMP. The tribes hope and expect that their traditional knowledge, when they choose to 

offer it, will be treated with the same kind of respect as is the knowledge derived from 

the efforts of western scientists engaged in the AMP. Although there are some 

fundamental differences between indigenous and western scientific approaches to the 

acquisition of knowledge, in light of common concerns for the Grand Canyon, the tribal 

representatives hope that ways can be found to transcend such differences. 

 When federal agencies engaged in the AMP propose to conduct activities within 

the boundaries of a reservation, the consultation requirements of federal law continue to 

apply, although some of the specific requirements under certain laws are different within 
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reservation boundaries (as noted later). Within reservation boundaries, however, 

compliance with federal law is not sufficient. Rather, the tribal government has the 

authority to grant or withhold permission and to impose requirement under tribal laws. 

The fact that a person works for a federal agency, or is in the company of federal 

employees, does not render compliance with tribal law unnecessary. While this 

Consultation Plan does not explain the requirements for compliance with tribal law in the 

portions of the River Corridor within the Hualapai and Navajo Reservations, at several 

points the potential applicability of tribal law is noted. 

 While the focus of this Consultation Plan is relations between federal and tribal 

representatives, it may also be useful in guiding relations among the state and nongovernmental representatives in the AMP and the tribal representatives. 

A. Relationship of this Consultation Plan to the Adaptive Management 

Program 

 The Glen Canyon AMP has been established to guide the implementation of the 

Record of Decision (ROD) on the Final Environmental Impact Statement (FEIS) on the 

Operation of Glen Canyon Dam. In the ROD, the Secretary of the Interior (Secretary) 

selected the Modified Low Fluctuating Flow Alternative (identified in the FEIS as the 

preferred alternative) with certain modifications described in the ROD. Section VI of the 

ROD, captioned “Environmental Commitments and Monitoring,” lists seven 

commitments, which are described in more detail in the FEIS. The first commitment is 

adaptive management. The second commitment is monitoring and protection of cultural 

resources. 

 This Consultation Plan establishes processes and rules of relationships that will be 

followed to ensure continuing government-to-government consultation among the tribes 

and federal agencies involved in the Glen Canyon Dam AMP. All aspects of the AMP 

are included in this plan, including but not limited to the Programmatic Agreement on 

Cultural Resources (PA) and programs for compliance with the Endangered Species Act. 

 

 Many entities have roles in carrying out the AMP. The Adaptive Management 

Work Group (AMWG) is a federal advisory committee, established pursuant to the 

Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2 that operates according to a 

charter issued by the Secretary. The AMWG includes representatives from concerned 

federal agencies, state agencies, tribes and non-governmental organizations. Members of 

the AMWG are appointed by the Secretary; representatives of the Hopi Tribe, Hualapai 

Tribe, Navajo Nation, Zuni Indian Tribe and Southern Paiute Consortium serve as 

members of the AMWG. As a federal advisory committee, the AMWG provides 

recommendations to the Secretary of the Interior’s Designee, who is the federal official 

that chairs the AMWG and forwards the AMWG’s recommendations to the Secretary for 

action. 
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 In addition to the Secretary’s Designee and the AMWG, other organizational 

components of the AMP include the Technical Work Group (TWG), Grand Canyon 

Monitoring and Research Center (GCMRC), independent review panels, and ad hoc 

workgroups or subcommittees. All work conducted under the auspices of the AMWG 

must be considered by the AMWG before being incorporated into recommendations to 

the Secretary. 

 As a standing workgroup established under the auspices of the AMWG, the TWG 

has adopted its own operating procedures. Each organization represented in the AMWG 

is also represented in the TWG, but rather than being appointed by the Secretary each 

organization names its own representative and may designate an alternate. One 

Department of the Interior Agency, the U.S. Geological Survey (USGS), is represented 

on the TWG as a resource for technical advice but does not have a seat at the AMWG. 

 Meetings of the AMWG and TWG may serve to facilitate government-togovernment consultation between federal agencies and tribal governments, but 

participation in such meetings by federal agency and tribal representatives does not 

necessarily mean that government-to-government consultation has occurred or that, to the 

extent such consultation has occurred, it has been adequate. To the extent that 

consultation does occur in the context of AMWG and/or TWG meetings, it can be, and in 

many instances should be, supplemented by additional meetings between federal and 

tribal representatives. Consultations between federal agency officials and tribal officials 

(or their designated employees with authority to act on their behalf) are not subject to the 

Federal Advisory Committee Act (FACA) where such meetings are for the purpose of 

“exchanging views, information, or advice relating to the management or implementation 

of Federal programs.” Unfunded Mandates Reform Act of 1995, 2 U.S.C. §1534. 

 In addition to the tribes that participate in the AMWG and TWG, the Havasupai 

Tribe and San Juan Southern Paiute Tribe also have interests that are affected by 

activities carried out under the auspices of the AMP and/or PA. The fact that these two 

tribes choose not to participate in the AMWG and TWG does not relieve federal agencies 

of their obligations to engage in consultation with these tribes. 

B. Relationship of this Consultation Plan to the Programmatic Agreement 

and Historic Preservation Plan 

 Prior to the completion of the FEIS, a Programmatic Agreement (PA) on Cultural 

Resources was executed by the Bureau of Reclamation (BOR), Advisory Council on 

Historic Preservation (ACHP), National Park Service (NPS), Arizona State Historic 

Preservation Officer (AZ SHPO), and the following tribes: Hopi Tribe, Hualapai Tribe, 

Kaibab Band of Paiute Indians, Navajo Nation, Paiute Indian Tribe of Utah, and Zuni 

Indian Tribe. (Signatures on the PA are dated from August 12, 1993 through August 30, 

1994.) This PA was executed to fulfill the responsibilities of BOR and NPS for 

compliance with Section 106 of the National Historic Preservation Act (NHPA), 16 

U.S.C. §470f, and the implementing regulations issued by the ACHP, 36 C.F.R. part 800. 

 While this PA is included in the FEIS (as Attachment 5), the legal responsibilities under 
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NHPA section 106 and the ACHP regulations are distinct from the legal responsibilities 

imposed by the National Environmental Policy Act (NEPA), pursuant to which the FEIS 

was prepared. BOR is the lead agency for this PA, as the operator of Glen Canyon Dam; 

as the land managing agency, NPS is responsible for the management of historic 

properties in Glen Canyon National Recreation Area and Grand Canyon National Park. 

The PA recognizes that the Hualapai Tribe and Navajo Nation have governmental 

authority over historic properties within their respective reservations. The AZ SHPO has 

certain duties pursuant to the ACHP regulations, and as such is a signatory to the PA; the 

ACHP is a signatory by virtue of its regulatory authority over NHPA section 106. The 

roles of the AZ SHPO and ACHP in the PA thus distinguish this agreement from the rest 

of the AMP, since the AZ SHPO and ACHP are not represented in the AMWG. 

 The PA anticipates the development of a Historic Preservation Plan (HPP) for the 

long-term management of the Grand Canyon River Corridor District and any other 

historic properties within the area of potential effects of the Glen Canyon Dam 

operations. This planned HPP has not yet been developed. This Tribal Consultation Plan 

is being developed with the intent of incorporating it as an appendix or addendum in the 

HPP. 

 The PA is currently being revised to reflect certain developments since it was 

executed, including Amendments to the NHPA enacted in 1992 and revisions to the 

ACHP regulations promulgated in December 2000. Pursuant to the 1992 amendments to 

the NHPA, both the Hualapai Tribe and Navajo Nation have assumed the role in the 

section 106 process that would otherwise be performed by the AZ SHPO – each has a 

Tribal Historic Preservation Officer (THPO), and this must be reflected in the revised 

PA. In addition, the Western Area Power Administration (WAPA) and the Bureau of 

Indian Affairs (BIA) will become signatories, and additional signatories may also be 

added. 

 Although the FEIS refers to the PA as the “Programmatic Agreement on Cultural 

Resources,” it must be noted that the PA addresses compliance with NHPA section 106 

and the ACHP regulations. The PA does not address two other federal cultural resource 

statutes that are implicated in the effects of the operation of Glen Canyon Dam on the 

Colorado River Corridor: the Native American Graves Protection and Repatriation Act 

(NAGPRA) and the Archaeological Resources Protection Act (ARPA). (NAGPRA is not 

just a “cultural resources” statute – in the legislative history the Senate Committee on 

Indian affairs described it as “human rights” legislation. The “Consequences” chapter of 

the FEIS includes NAGPRA under the heading “Indian trust assets.” FEIS, page 318.) 

Both NAGPRA and ARPA establish legal requirements distinct from NHPA. This Tribal 

Consultation Plan does include provisions addressing both NAGPRA and ARPA because 

both statutes mandate consultation between the federal government and Indian tribes. 

C. Relationship of this Consultation Plan to Tribal Law 

 As noted above, activities taken under the auspices of the AMP or PA/HPP are 

generally subject to tribal law if conducted within reservation boundaries. This 
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Consultation Plan does not provide detailed guidance on how to comply with tribal law. 

Through consultation as described in this Consultation Plan, applicable tribal laws can be 

identified and steps taken to ensure compliance. 

2. LEGAL BASICS FOR THE FEDERAL GOVERNMENT’S RELATIONS WITH THE TRIBES

 Indian tribes have a special status in American law. As governments that are 

distinct from the federal government and the states, they are the third kind of sovereign in 

our federal system. In addition to governmental authority within their reservations, tribes 

also possess certain kinds of rights that are different from the rights of other Americans, 

including rights based on treaties and acts of Congress. This section of the Consultation 

Plan briefly discusses the status of tribes in federal law, with a few references. For 

further information, the website of the Office of American Indian Trust (OAIT) in the 

Department of the Interior (DOI) provides references to numerous sources, including 

DOI policies and documents produced by scholars of the subject matter. See 

www.doi.gov/oait/legislat.htm. See also Addendum ___.1

A. Tribal Sovereignty and Trust Responsibility 

 “The United States recognizes the right of Indian tribes to self-government and 

supports tribal sovereignty and self-determination.” Executive Order 13175, 

“Consultation and Coordination with Indian Tribal Governments,” §2(c), 65 Fed. Reg. 

67249 (Nov. 6, 2000); also published at 25 U.S.C.A. §450 notes.2 Federal law 

recognizes that Indian tribes have inherent sovereignty over their members and their 

territory. Sovereignty means that tribes have the power to make and enforce laws and to 

create institutions of government. Saying that tribal sovereignty is inherent means that it 

comes from within the tribe itself and existed before the founding of the United States. 

Tribal sovereignty is not absolute, but rather is subject to certain limits established by 

Congress and the federal courts (although such limits are generally not relevant to this 

Consultation Plan). In addition to inherent sovereignty, tribes can also exercise 

governmental authority delegated to them by Congress. 

 Relations between the federal government and the tribes are shaped by a body of 

law that includes treaties, acts of Congress, court decisions, and Executive orders. One 

of the key legal doctrines is known as the federal trust responsibility, which includes 

fiduciary obligations on the part of the federal government for the management of lands 

and natural resources held in trust for the benefit of Indian tribes and tribal members. In 

addition to management of land and other trust resources, Congress has recognized that 

the trust responsibility “includes the protection of the sovereignty of each tribal 

government.” 25 U.S.C. §3601. While the Bureau of Indian Affairs (BIA) has the lead 

role in carrying out the trust responsibility, courts have ruled that other federal agencies 

also have trust obligations to Indian tribes. The “AMWG FACA Committee Guidance” 

for the AMP acknowledges this, saying: 

“All Federal agencies have a special responsibility to Native Americans by law, 
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including statutes, treaties, and executive orders. With the Secretary of the 

Interior being the trustee, Department of the Interior agencies have a special role.” 

Strategic Plan, Glen Canyon Dam Adaptive Management Program (Final 

Draft, August 17, 2001) (herein, “AMP Strategic Plan”), Appendix B, 

AMWG FACA Committee Guidance, at Appendix B-7. 

As the Final EIS acknowledges, the Navajo Nation and the Hualapai Tribe have 

management responsibilities associated with Grand Canyon, and that the Navajo Nation 

also has such responsibilities associated with Glen Canyon. FEIS, page 4. For each of 

these tribes, its reservation is bordered by the Colorado River, and so these two tribes 

have governmental authority over lands within the River corridor that are affected by the 

operation of Glen Canyon Dam. DOI and the Hualapai Tribe do not agree on the precise 

location of the boundary of the Hualapai Reservation; similarly, DOI and the Navajo 

Nation do not agree on the location of the boundary of the Navajo Reservation. Neither 

boundary is the subject of an applicable court ruling. 

It is unnecessary to resolve these disagreements prior to the adoption of this 

Consultation Plan. Accordingly, the Consultation Plan simply notes that there are 

disagreements regarding these boundaries, and, in parts 7, 8, and 9, this Plan takes note of 

some of the implications of this boundary issue with respect to the impacts of Glen 

Canyon Dam operations and activities under the auspices of the AMP and/or PA/HPP on 

cultural resources and natural resources of importance to the Tribes. If a situation arises 

that renders it necessary or advisable to definitively resolve an issue relating to a 

reservation boundary, the protocols in parts 8 and 9 of this Consultation Plan may be 

used for consultation regarding the resolution of such an issue. 

 (1) Hualapai Reservation Boundary 

 The Hualapai Reservation was established by Executive Order on January 4, 

1883. This Executive Order places the relevant boundary on the Colorado River for a 

distance that has since then been determined to be 108 River miles. The Hualapai Tribe 

maintains that its Reservation boundary is the middle of the Colorado River. The 

Solicitor’s Office of the Department has issued two opinions, dated February 6, 1976, 

and November 25, 1997, taking the position that the Reservation boundary is the high 

water mark on the south bank of the River. These Solicitor’s opinions do not definitively 

resolve the matter, although these opinions are regarded by officials and staff of 

Department of the Interior agencies as binding on them. The “high water mark” is the 

line “to which high water ordinarily reaches and is not the line reached by water in 

unusual floods.” Bonelli Cattle Co. v. Arizona, 495 P.2d 1312, 1314-15 (Ariz. 1972), 

reversed on other grounds, 414 U.S. 313 (1973). 

Within the boundary of the Hualapai Reservation, tribal laws apply in addition to 

federal laws. Under tribal law, it is unlawful for any nonmember of the Tribe to be 

present within that part of the Reservation except as authorized by the Tribe. 

 (2) Navajo Nation Boundary Issues 
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[Note: Placeholder for language to be drafted by Navajo Nation, possibly 

including the point that the Navajo Reservation was established through a Treaty.] 

 (3) Havasupai Reservation Boundary 

[Note: Although the Havasupai Reservation boundary is not within the Colorado 

River corridor, many people gain access to places within the Havasupai 

Reservation by hiking up from the River Corridor. This would be an appropriate 

point to insert some language that puts people on notice of this boundary, which 

was set by a fairly recent Act of Congress.] 

B. Government-to-Government Relationship 

Because tribes are governments, the relationship between the federal government 

and the tribes is sometimes described as “government-to-government.” This is 

recognized in Executive Order 13175, which states, “The United States continues to work 

with Indian tribes on a government-to-government basis to address issues concerning 

Indian tribal self-government, tribal trust resources, and Indian treaty and other rights.” 

In the context of the operation of Glen Canyon Dam and the Adaptive Management 

Program, two of the tribes, the Navajo Nation and Hualapai Tribe, as noted above, have 

governmental authority over some of the lands and waters in the River corridor. 

Although the other tribes do not have such governmental authority in the River corridor, 

they all have rights protected by federal statutes. Tribes are sovereign governments and 

they must be treated as such even when the matters at issue are beyond the reach of tribal 

territorial sovereignty. Moreover, tribes and federal agencies may enter into agreements 

through which tribes assist federal agencies in carrying out their responsibilities. In one 

sense, the term “government-to-government” relations is a way of reminding people that 

Indian tribes are different from non-governmental organizations that advocate for the 

interests of particular groups that comprise part of the general public. 

The relationship between tribes and states can also be described as “governmentto-government.” State-tribal relations, though, are different from federal-tribal relations. 

For example, federal-tribal relations are subject to the federal trust responsibility, while 

the states have no corresponding responsibility to tribes. 

3. BACKGROUND ON TRIBAL GOVERNMENT INVOLVEMENT REGARDING THE 

OPERATION OF GLEN CANYON DAM

A. Tribal Roles in the Environmental Impact Statement (EIS) 

 In 1991, the Bureau of Reclamation and the Hopi Tribe, Hualapai Tribe, Navajo 

Nation, Southern Paiute Consortium, and Pueblo of Zuni entered into cooperative 

agreements to facilitate tribal involvement and input into the Glen Canyon 

Environmental Studies Program. Tribal involvement focused on identification of historic 
9

properties and resources of tribal concern necessary for incorporation into the Operation 

of Glen Canyon Dam Final Environmental Impact Statement (FEIS). 

 In 1992, the Bureau of Reclamation recognized that making a decision on the 

operation of Glen Canyon Dam based on the FEIS would constitute an undertaking as 

defined by Section 106 of the National Historic Preservation Act. Section 106 of NHPA 

requires Federal agencies to take into account the effects of their undertakings on historic 

properties (i.e., properties eligible for or listed on the National Register of Historic 

Places) and to afford the Advisory Council on Historic Preservation an opportunity to 

comment on such undertakings. Section 106 also requires consultation with Indian tribes 

and other interested parties that might have concerns with the effects of the undertaking 

(in this case the operation of Glen Canyon Dam) on historic properties. 

B. Tribal Roles in the Programmatic Agreement (PA) 

 The Tribes participated in the Section 106 process with respect to identification 

and evaluation of historic properties that lie within the area of potential effects of Glen 

Canyon Dam operation. By August of 1994, the Advisory Council on Historic 

Preservation, the Bureau of Reclamation, the Arizona State Historic Preservation Officer, 

the National Park Service, the Hopi Tribe, Hualapai Tribe, Kaibab Paiute Tribe, Navajo 

Nation, Paiute Indian Tribe of Utah for the Shivwits Paiute Tribe, and the Pueblo of Zuni 

signed a Programmatic Agreement on Cultural Resources (PA). The PA stipulates 

completion of identification and evaluation of historic properties affected by dam 

operations; development of an interim plan for monitoring effects of dam operations on 

eligible properties and performing remedial actions to address effects of ongoing damage 

to historic properties; and incorporation of results of identification, evaluation, 

monitoring and remedial actions into a Historic Preservation Plan for the long-term 

management of historic properties within the area of potential effects of dam operations, 

an area defined by the maximum possible discharge from the dam, 256,000 cubic feet per 

second flow. 

 From the signing of the PA through October 1997 when a Record of Decision was 

signed by the Secretary of the Interior, the Tribes continued to identify resources and to 

determine where and how dam operations were likely to adversely affect those resources. 

Resources of tribal concern included historic properties as defined by NHPA, places 

where Native American graves and/or other cultural items covered by NAGPRA are 

located, as well as sacred sites as defined by Executive Order 13007, and natural 

resources not specifically covered by particular laws, regulations, or Executive orders. 

These categories of resources may overlap. Historic properties as defined by NHPA 

mean properties that are listed on or eligible for the National Register of Historic Places. 

Places where Native American graves are discovered may be determined eligible for the 

National Register. Many sacred sites as defined in Executive Order 13007 may be 

eligible for the National Register, but the concerned Tribe(s) may choose not to have 

such sites documented for purposes of eligibility determinations; in some cases, the 

concerned Tribe(s) may not object to such documentation, but for various reasons such 

documentation may not have been prepared yet. Similarly, places where there are natural 
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resources that do not appear to be protected by specific laws, regulations or Executive 

orders may be eligible for the National Register as traditional cultural properties, but 

documentation needed for eligibility determinations may be lacking. 

 C. Tribal Interests Reflected in the Final EIS 

 The Final EIS addresses the concerns of the Tribes in two sections on cultural 

resources (one in Chapter III Affected Environment, pp. 140-146, and one in Chapter IV 

Environmental Consequences, pp. 260-271) and in a section on Indian trust assets (in 

Chapter IV Environmental Consequences, pp. 318-319). For the most part, the 

discussion of tribal interests in the EIS focuses on cultural resources, although the section 

on tribal trust assets does acknowledge that Native American human remains and cultural 

items are protected by NAGPRA, which recognizes that the tribe that is culturally 

affiliated with such items located on federal lands has rights of “ownership or control.” 

 The Final EIS uses two basic categories to classify “cultural resources”: 

“archaeological sites” and “Native American traditional cultural properties and 

resources,” recognizing that there is some overlap between these categories. Final EIS, 

pp. 260-261. In addition to these two categories, the Final EIS also mentions “isolated 

occurrences,” which are described in the Final EIS as “findings of artifacts or other 

remains located apart from an archaeological site.” The 489 “isolated occurrences” noted 

in the Final EIS were not evaluated for eligibility for the National Register of Historic 

Places and were not considered in the impact analysis in the EIS. 

 The Final EIS states that 475 archaeological sites have been documented in the 

Colorado River corridor between Glen Canyon Dam and Separation Canyon. Of these, 

323 sites have been determined eligible for the National Register of Historic Places as 

contributing elements to the Grand Canyon River Corridor Historic District. The 

remaining sites were either considered not eligible for the National Register, or were not 

evaluated because they are outside the zone of impact. Most of these sites represent 

prehistoric and historic use by Indian people. (Some 71 sites, or components of sites, 

represent historic use by Anglo-Americans.) In addition, the final EIS notes that, 

including the areas outside of the River Corridor, over the years more than 2,600 sites 

have been documented in Grand Canyon and more than 2,300 sites have been 

documented in Glen Canyon. 

 In addition to “archaeological sites,” the Final EIS discusses the category of 

“traditional cultural properties and resources.” Traditional cultural properties (TCPs) are 

places that are eligible for the National Register if they are affiliated with a living 

community, such as an Indian tribe, and “are rooted in the living community’s history 

and important in maintaining the community’s cultural identity.” Final EIS, p. 261, 

citing NATIONAL REGISTER BULLETIN NO. 38: GUIDELINES FOR EVALUATING AND 

DOCUMENTING TRADITIONAL CULTURAL PROPERTIES. (Bulletin 38 is available on the 

internet at www.cr.nps.gov/nr/publications/bulletins/nr38_toc.htm.) Places may be 

considered TCPs regardless of whether they contain archaeological remains. As stated in 

the Final EIS: 
11

“The Colorado River, its tributaries, the canyons through which it flows, the 

canyon rims, and the mountains and plateaus that surround them form a sacred 

landscape that is culturally significant to the Indian Tribes with ties to the Grand 

Canyon. Within this landscape are specific places, ranging from archaeological 

sites to mineral collection areas, considered important for a variety of reasons by 

each tribe. The locations of these traditional cultural properties are sometimes 

closely held secrets, and it is often with reluctance that tribes reveal specific 

sites.” 

 The Final EIS also says, “Virtually all prehistoric sites are affiliated with 

contemporary Indian tribes, often more than one group due to multiple traditions or 

multiple uses of many sites found along the Colorado River.” Final EIS, p. 261. 

“Traditional cultural properties can include specific plant gathering areas, landforms, 

springs, prayer offering locations (shrines), archaeological sites, ancestral burials, 

mineral deposits, and other resource collection sites.” Final EIS, p. 261. Some kinds of 

resources can be obtained at many different locations. With regard to these “traditional 

resources,” the Final EIS says that: 

“because they are not place-specific or because they encompass large areas as 

cultural landscapes, [they] are not eligible for the National Register. Their 

importance to Native Americans, however, is not lessened because of the way 

current cultural preservation law is defined. In addition, many of them are 

governed by the National Park Service (NPS) management policies that require 

all cultural landscapes to be treated as cultural resources, regardless of the type or 

level of significance.” Final EIS, p. 261. 

 The information in the Final EIS regarding TCPs is less specific than for 

archaeological sites, for a variety of reasons, including the reluctance of the Tribes to 

reveal sensitive information about TCPs and the difficulties inherent in defining 

boundaries for specific TCPs within a landscape that the Tribes regard as a single TCP 

from rim to rim. Moreover, as the Final EIS notes, the evaluation of “isolated 

occurrences” within the River Corridor by the Tribes is ongoing. Final EIS, p. 261. 

D. Tribal Roles in the Adaptive Management Program 

 In 1997, the Adaptive Management Work Group or AMWG was chartered to 

provide advice and recommendations to the Secretary of the Interior relative to Glen 

Canyon dam operations. According to the AMWG Charter, members of the AMWG are 

appointed by the Secretary of the Interior and include one representative from the Hopi 

Tribe, Hualapai Tribe, Navajo Nation, San Juan Southern Paiute, Southern Paiute 

Consortium, and Pueblo of Zuni. Tribal members are appointed based on input and 

recommendations from the respective tribal governments. The first official meeting of the 

AMWG was held on September 10-11, 1997, and meetings have been held twice or more 

per year ever since. 
12

 From 1997 through 1999, the participation of the Tribes in the meetings of the 

AMWG and in the overall Adaptive Management Program (including the Programmatic 

Agreement (PA) on cultural resources) was funded through a cooperative agreement with 

the Grand Canyon Monitoring and Research Center (GCMRC). The objectives specified 

by these agreements were to have the Tribes assist in the monitoring and research 

necessary to assess impacts or effects of the Secretary’s actions in the operation of Glen 

Canyon Dam on resources of tribal concern. 

 In 1999, the cooperative agreements with the GCMRC were terminated and new 

agreements were issued between the Tribes and the Bureau of Reclamation. The purpose 

of this change in administration of the agreements was to more formally recognize the 

continuing government-to-government relationship and communication over 

Reclamation’s operation of Glen Canyon Dam. Reclamation’s administration of the 

agreements was designed to ensure the Tribes have a continuing voice in dam operations 

and in any planning or actions necessary to minimize harm to resources of concern to the 

Tribes that are affected by dam operations. These agreements remain in place today. 

E. Tribal Commentaries on Experiences with Consultation 

 In the context of the AMP, while the tribes are represented in the AMWG and 

TWG, tribal representatives are less than completely satisfied with their involvement in 

either group. Tribal representatives have the impression that both groups are driven by 

the interests of western science and that tribal concerns grounded in tribal religious and 

cultural beliefs are not afforded appropriate respect, consideration, and appreciation. The 

tribes tend to understand cultural resources as a broad concept that includes not only the 

physical remains of past human activity but also the living things and places that have 

ongoing cultural importance, while other participants in the AMP seem to regard cultural 

resources as a narrower concept. Tribal representatives also have the impression that 

some of the other participants in the AMWG and TWG convey a lack of understanding of 

the status of tribes as sovereign governments. In addition, when tribal representatives do 

voice their concerns in the AMWG and TWG meetings, and otherwise provide input for 

the AMP, the tribes are not routinely informed regarding how their input was considered 

and, if tribal recommendations are not accepted the reasoning for such decisions. 

Consequently, although tribal representatives have participated in the AMWG and TWG, 

they generally do not regard their participation as “consultation.” 

 In the context of the PA, consultation between tribes and the federal agencies has 

occurred. The federal officials engaged in this consultation have specific responsibilities 

for carrying out the federal cultural resources statutes, and they are aware of their 

obligations to consult with the Tribes. Tribal representatives, however, generally believe 

there is a need to improve the quality and effectiveness of this consultation because, from 

their perspectives, even if they do reach agreement on certain issues during consultation 

meetings, the federal agencies sometimes do not abide by the agreements reached. 
13

4. DEFINITION OF “CONSULTATION” FOR THIS PLAN

 There is no standard definition of “consultation,” although it generally does mean 

more than simply providing information about what an agency is planning to do and 

allowing concerned people to comment. Rather, “consultation” generally means that 

there must be two-way communication. In the context of the PA and AMP, much of the 

consultation with tribes concerns places and resources that qualify for treatment as 

historic properties under NHPA, and so it appears appropriate to quote the definition of 

“consultation” from the guidelines issued by the National Park Service for federal 

agencies in carrying out historic preservation programs, a definition that is also 

incorporated into the regulations of the Advisory Council on Historic Preservation for the 

NHPA Section 106 consultation process: 

“Consultation means the process of seeking, discussing, and considering the 

views of others, and, where feasible, seeking agreement with them on how 

historic properties should be identified, considered, and managed. Consultation is 

built upon the exchange of ideas, not simply providing information.” 

 63 Fed. Reg. 20504 (Apr. 24, 1998). 

This general meaning of “consultation” is subject to specific requirements established 

pursuant to legal authorities that apply in certain circumstances. Requirements of the 

three major federal cultural resources statutes are discussed later in this Consultation 

Plan. See Part 7. 

 While consultation means more than simply providing information, it does not 

mean that the parties being consulted have the power to stop a federal agency action by 

withholding consent. As the AMWG FACA Guidance notes (with specific reference to 

consultation under NHPA), “the ultimate decision on how to proceed rests with the 

Secretary of the Interior and the federal agencies delegated the responsibility for 

management of the resources.” AMP Strategic Plan, at Appendix B-8. 

 In some instances another federal agency or a non-federal entity may have the 

legal authority to stop a proposed action. (For example, in the context of the AMP and 

PA/HPP there may be instances in which the consent of either the Navajo Nation or the 

Hualapai Tribe is legally required for a federal action to proceed, that is, if the action 

would occur within the boundaries of either Tribe’s reservation. In such cases, the 

requirement for tribal consent is distinct from requirements to engage in consultation.) 

 In cases in which consultation does not lead to an agreement, it may end when it 

becomes clear that an agreement will not be reached. In some situations, even though a 

tribe does not have legal authority to prevent an agency from going forward with a 

proposed action, consultation may nevertheless persuade the agency official to decide not 

to proceed, perhaps because to do so would jeopardize the ongoing consultative 

relationship between the agency and the tribe. In any matter in which a tribe has made 

recommendations and the federal agency decision-maker has not accepted the tribe’s 
14

recommendations, the agency shall advise the tribe that its recommendations have not 

been accepted and provide reasons for rejecting such recommendations.3

 

5. GOALS AND EXPECTATIONS OF CONSULTATION. 

The federal agencies involved in the AMP and PA/HPP are well aware of the 

cultural and religious importance to the concerned Tribes of historic and cultural 

resources within the River corridor, and the Tribes rightfully expect that their concerns 

will be taken seriously by these agencies. 

 A. Adaptive Management Program 

 The Tribes expect that the agencies and organizations that are represented on the 

AMWG and TWG will interact with tribal representatives in ways that reflect awareness 

of the governmental status of tribes and that demonstrate respect for traditional tribal 

knowledge and religious beliefs. The Tribes expect that other agencies and organizations 

engaged in the AMWG and TWG will seek and consider tribal input on the entire range 

of issues, not just cultural resources. With respect to cultural resources, the Tribes expect 

that federal agency activities affecting these resources will be carried out in accordance 

with the PA and HPP. The Tribes also expect that other agencies and organizations will 

keep in mind that many sites at which cultural resources are located have not been 

documented as such. In addition, the Tribes regard the term “cultural resources” as 

including a broad range of places and things, often including biological communities and 

geological features that have cultural and/or religious significance, regardless of whether 

physical manifestations of human activity are present at a place. Such places may be 

eligible for the National Register of Historic Places as traditional cultural properties; 

regardless of National Register eligibility, such places may be Sacred Sites subject to 

accommodation of tribal religious practices under Executive Order 13007. 

 B. Programmatic Agreement and Historic Preservation Plan 

 The Tribes expect that federal agency activities affecting cultural resources within 

Grand Canyon National Park, Glen Canyon National Recreation Area, the Hualapai 

Reservation and the Navajo Reservation will be conducted in accordance with the 

Programmatic Agreement (PA) and Historic Preservation Plan (HPP). To the extent that 

specific cultural resources issues are not addressed in the PA and/or HPP, the Tribes 

expect that all parties will comply with applicable federal and tribal laws and will engage 

in meaningful consultation with concerned Tribes, as provided in this Consultation Plan, 

before taking any action that will affect cultural resources. In that the ACHP and AZ 

SHPO are parties to the PA but are not represented in the AMP, the Tribes expect that the 

ACHP and AZ SHPO will monitor the activities conducted under the auspices of the 

AMP to ensure that the commitments made in the PA and HPP are fulfilled.4

6. PRINCIPLES FOR CONSULTATION WITH TRIBES
15

 The following general principles can be used to guide consultation in a variety of 

contexts.5 The specific requirements noted in Part 7 also apply to certain kinds of 

matters, in addition to these general principles. 

A. Know the Tribes 

 As a prerequisite for effective consultation, the representatives of each of the 

federal agencies engaged in the AMP and/or the PA and HPP must have a basic level of 

understanding about the concerned tribes. Knowledge about the tribes will also promote 

more constructive communication among tribes and non-federal entities. Addendum ___ 

to this Consultation Plan [not yet drafted] provides some basic information regarding 

each of the Tribes, such as contact information for representatives to serve as points of 

contact for consultation under this plan.6

 Consultation will generally be more effective if tribal representatives have a clear 

understanding of each federal agency’s mission and programs. Federal representatives 

should ensure that tribal representatives have relevant information about their agencies. 

Tribal representatives should have a working knowledge about each federal agency and 

should not hesitate to ask federal representatives for explanatory information when 

needed. 

B. Know the Legal Requirements 

 Another prerequisite to effective consultation, especially in the context of cultural 

resources, is that federal agency representatives know the legal requirements that may 

apply. While these requirements are summarized in Part 7 of this Consultation Plan, to 

develop a working knowledge of these requirements generally requires participation in 

training programs. 

C. Build On-Going Consultative Relationships with the Tribes. 

 Consultation on specific matters will tend to be more constructive if conducted 

within the framework of an ongoing government-to-government relationship. 

Consultation puts demands on tribes as well as on agencies, and such relationships can 

help tribes and agencies decide how to most effectively allocate their resources among 

the specific matters for which consultation may be appropriate. Accordingly, this 

Consultation Plan establishes a framework for ongoing consultation. 

D. Institutionalize Consultation and Collaboration Procedures 

 Consultation is more effective when there are established protocols for the 

specific kinds of contexts in which consultation may occur. This Consultation Plan sets 

out these protocols in Parts 8 and 9. 

E. Contact Tribes Early and Allow Sufficient Time for Consultation 
16

 As a general rule, agencies should contact tribes as soon as there is enough 

information so that consultation will be constructive and so that changes to a proposed 

agency action can be more easily accommodated based on tribal concerns. The protocols 

specified in Parts 8 and 9 provide some guidance for specific contexts. 

F. Establish Training Programs for All Agency Staff on Consultation with 

Tribes 

 Consultation will be more constructive if agency staff have participated in 

appropriate training programs. Tribal representatives are not responsible for educating 

agency personnel on their responsibilities in consultation. 

G. Maintain Honesty and Integrity 

 Honesty and integrity are essential. If agency representatives cannot respond 

immediately to tribal concerns, they must acknowledge such concerns and ensure that 

they are addressed at a future date. When tribal recommendations are not accepted, 

agencies must inform tribal representatives and provide reasons for not accepting tribal 

recommendations. 

H. View Consultation as Integral 

 A federal agency should see relations with tribal governments as an integral part 

of its mission, with an understanding that consultation is essential to maintaining 

constructive relations with tribal governments, and not just as a procedural requirement. 

By regarding consultation as integral, agencies can use consultation as a non-adversarial 

opportunity to develop consensus solutions or otherwise find common ground. 

7. LEGAL REQUIREMENTS FOR CERTAIN KINDS OF CONSULTATION

 As noted in Part 1 of this Consultation Plan, the Grand Canyon Protection Act 

(GCPA) requires the Secretary to establish and implement long-term monitoring 

programs and activities to ensure that Glen Canyon Dam is operated “in such a manner as 

to protect, mitigate adverse impacts to, and improve the values for which Grand Canyon 

National Park and Glen Canyon National Recreation Area were established, including, 

but not limited to natural and cultural resources and visitor use.” The GCPA also 

expressly requires that long-term monitoring programs and activities be established and 

implemented “in consultation with” Indian tribes, as well as in consultation with others. 

GCPA §1805(c). The GCPA does not provide explicit direction on how consultation 

with the Tribes should be conducted. 

 The Record of Decision (ROD) for the operation of Glen Canyon Dam, which 

was based on the FEIS, includes a number of environmental and monitoring 

commitments. The regulations of the Council on Environmental Quality (CEQ) 
17

implementing the National Environmental Policy Act (NEPA) require the 

implementation of these commitments, since they are part of the ROD. See 40 C.F.R. 

§1505.3. Commitment number 2 in the ROD, captioned “Monitoring and Protection of 

Cultural Resources,” provides, in part, “Reclamation and the National Park Service, in 

consultation with Native American Tribes, will develop and implement a long-term 

monitoring program for these sites [i.e., ‘prehistoric and historic sites and Native 

American traditional use and sacred sites.’]. Any necessary mitigation will be carried out 

according to a programmatic agreement written in compliance with the National Historic 

Preservation Act.” The ROD itself does not specify how this consultation will be carried 

out. One of the key documents prepared for carrying out the commitments in the ROD, 

the “Final Draft Information Needs” document for the AMWG and TWG (Dec. 14, 

2001), explicitly provides for consultation in Management Objective 11.3, which says: 

Protect and maintain physical access to traditional cultural resources through 

meaningful consultation on AMP activities that might restrict or block physical 

access by Native American religious and traditional practitioners. 

Moreover, Management Objectives 11.1 and 11.2 specify a number of information needs 

that implicitly require consultation with the Tribes (since meeting these information 

needs generally requires consultation with the Tribes). The Information Needs document 

does not specify how consultation will be accomplished. 

There are several federal statutes, however, that do establish explicit requirements 

for consultation with tribes, in some cases through statutory language and in some cases 

through implementing regulations. NEPA is triggered by federal agency action, and the 

CEQ implementing regulations require agencies to invite tribes to become involved. 

Both NHPA and NAGPRA establish consultation requirements. ARPA establishes a 

requirement to provide notice to tribes. The regulations implementing the National 

Environmental Policy act (NEPA) include requirements to seek involvement of Indian 

tribes. Secretarial Order No. 3206, “American Indian Tribal Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered Species Act” (June 5, 1997), sets out certain 

requirements for consultation with tribes in the implementation of the Endangered 

Species Act (ESA). The order of presentation in this Part of the Consultation Plan does 

not indicate anything about the relative importance of these legal requirements. Rather 

the order of the federal requirements is generally from the most inclusive to the most 

specific. 

 In addition, within the Navajo and Hualapai Reservations, the respective tribal 

governments have legal authority as an aspect of inherent tribal sovereignty, and tribal 

laws also apply. Requirements under tribal law are briefly noted after the discussion of 

federal requirements. 

 A. NEPA Consultation 
18

 NEPA, 42 U.S.C. §§4321 – 4370d, requires the preparation of an environmental 

impact statement (EIS) for any proposed federal action that would significantly affect the 

quality of the human environment. This requirement is implemented through regulations 

issued by the President’s Council on Environmental Quality (CEQ). 40 C.F.R. parts 

1500 – 1508. The EIS on the Operation of Glen Canyon Dam was prepared pursuant to 

NEPA and the CEQ regulations. When an EIS is prepared, the CEQ regulations include 

provisions requiring the lead federal agency to invite affected Indian tribes to become 

involved in the EIS process at several points, including: scoping, §1501.7; providing 

notice of public hearings, meetings and the availability of NEPA documents, 

§1506.6(b)(3); and commenting on a draft EIS, §1503.1(a)(2). In addition, a tribe may 

become a cooperating agency for the preparation of an EIS, §§1501.6, 1508.5. As noted 

earlier, cooperating agencies in the preparation of the EIS on the Operation of Glen 

Canyon Dam included the Hopi Tribe, Hualapai Tribe, Navajo Nation, San Juan Southern 

Paiute Tribe, Southern Paiute Consortium, and Zuni Pueblo. 

 Under the CEQ regulations, a federal agency can prepare a less detailed NEPA 

document known as an environmental assessment (EA) in order to determine whether an 

EIS is required. The key question an EA seeks to answer is whether the impacts of a 

proposed action will be “significant.” If so, an EIS is required; if not, then the 

responsible federal official signs a “finding of no significant impact” (FONSI). In 

addition to the decision whether to prepare an EIS, an EA may also be used to identify 

mitigation measures so that adverse environmental impacts may be avoided or the 

intensity of such impacts reduced. The CEQ regulations provide very little guidance on 

the preparation of an EA; as such, the basic legal requirements to seek involvement of 

tribes regarding EAs is the section requiring notice of hearings, meetings and the 

availability of NEPA documents. §1506.6(b) (3). An EA is often used, however, to help 

identify other legal review and consultation requirements that may apply to a proposed 

federal action, and several of these other requirements do have explicit requirements to 

consult with tribes. Accordingly, it is generally advisable for federal agencies preparing 

EAs on proposed actions seek involvement by tribes that may be concerned regarding the 

possible impacts of a proposed action. 

 Federal actions that are treated as categorical exclusions for purposes of the 

NEPA process may nevertheless have impacts on places and resources that are important 

to the tribes. The use of categorical exclusions will be subject to discussions among 

federal agencies and tribes in consultation meetings specified in the protocols in part 8, if 

a tribe or federal agency chooses to put this topic on the agenda for such a meeting. 

 B. NHPA Consultation. 

 Pursuant to NHPA section 106, consultation is triggered by a proposal for a 

federal or federally-assisted undertaking that may affect properties that are listed on or 

eligible for the National Register of Historic Places. 16 U.S.C. §470f. Under the 

regulations issued by the Advisory Council on Historic Preservation (ACHP), 36 C.F.R. 

part 800, the federal agency with authority over the undertaking has a lead role in 

carrying out the process, along with the state historic preservation officer (SHPO) or the 
19

tribal historic preservation officer (THPO) if the undertaking occurs within the 

boundaries of a reservation and the tribe has taken over the duties of an SHPO as 

authorized by section 101(d) of the statute. For undertakings that would affect properties 

within the boundaries of the Navajo Reservation or the Hualapai Reservation, both the 

Navajo Nation and the Hualapai Tribe have assumed the THPO role. The ACHP 

generally does not become involved in the review of specific undertakings, but retains the 

authority to do so. 

 If a tribe attaches religious and cultural importance to a historic property, then the 

tribe has a statutory right to be a consulting party, regardless of the ownership status of 

the land on which the potentially affected historic property is located. 16 U.S.C. §470a 

(d) (6). This statutory requirement to consult with tribes was enacted in the NHPA 

Amendments of 1992. The standard process through which such consultation takes place 

is set out in the ACHP regulations. 36 C.F.R. part 800. The ACHP regulations were 

issued in revised final form in December 2000, to implement the 1992 NHPA 

Amendments. (The revised regulations had not yet been issued when the EIS was 

prepared on Glen Canyon Dam operations.) The revised regulations include numerous 

provisions to ensure that Federal agencies make reasonable and good faith efforts to 

engage tribes in section 106 consultation, including: identifying participants in the 

section 106 process, §800.2(c)(2); initiation of the section 106 process, §800.3(c) 

(identification of the appropriate SHPO/THPO); §800.3(d) (consultation on tribal lands); 

identification of historic properties, §800.4 (numerous provisions); assessment of adverse 

effects, §800.5(a), (c)(2)(ii) (participation as THPOs and as tribes with concerns 

regarding off-reservation places); resolution of adverse effects, §800.6 (participation as 

THPOs and as consulting parties); coordination with NEPA, §800.6 (several specific 

requirements for involvement of tribes); federal agency program alternatives, §800.14(b) 

(consultation with tribes when developing programmatic agreements). In addition, the 

presence of issues of concern to Indian tribes is one of the criteria that the Advisory 

Council on Historic Preservation will consider in deciding whether to become directly 

involved in the section 106 process for a particular proposed action. Appendix A to Part 

800. 

 The standard process may be modified through the adoption of a programmatic 

agreement (PA), as was done in the decision based on the Final EIS for the operation of 

Glen Canyon Dam. In light of the extensive changes in the ACHP regulations since the 

PA was signed, as well as in recognition of developments in the implementation of the 

AMP, the signatories to the PA recognize the need to develop an updated, revised PA. 

 Issues previously noted regarding the location of the boundaries of the Hualapai 

and Navajo Reservations have implications for NHPA consultation regarding proposed 

federal undertakings on lands where the location of the reservation boundary is subject to 

disagreement. Briefly, since both the Hualapai Tribe and Navajo Nation have approved 

THPO programs, the role of the Arizona SHPO in the section 106 process for federal 

undertakings within reservation boundaries is limited. As prescribed in the ACHP 

regulations, the federal agency “shall consult with the THPO in lieu of the SHPO 
20

regarding undertakings occurring on or affecting historic properties on tribal lands.” 36 

C.F.R. §§800.2(c) (2) (i) (A), 800.3(c) (1). 

If an Indian tribe has assumed the functions of the SHPO in the section 106 

process for undertakings on tribal lands, the SHPO “shall participate as a 

consulting party if the undertaking occurs on tribal lands but affects historic 

properties off tribal lands, if requested in accordance with §800.3(c)(1) [pursuant 

to which the owners of land within a reservation not held in trust for the tribe or 

owned by a tribal member can ask the SHPO to participate in the section 106 

process], or if the Indian tribe agrees to include the SHPO pursuant to §800.3(f) 

(3).[36 C.F.R. §800.2(c) (1) (ii) (reformatted)]. 

 If a tribe other than the tribe within whose lands a historic property is located 

attached religious and cultural significance to such a property, the federal agency has a 

legal obligation to consult with the tribe for who the property holds religious and cultural 

significance, “regardless of the location of the historic property.” 36 C.F.R. §§800.2(c) 

(2) (ii), 800.3(f) (2). Accordingly, disagreements over the location of the reservation 

boundaries do not affect the right of a tribe that attaches religious and cultural importance 

to a historic property to be a consulting party. Such disagreements, however, may affect 

the role of the SHPO. This issue is addressed in the protocols in part 9 of this 

Consultation Plan. 

 In addition to the specific procedural requirements of NHPA and the 

implementing regulations issued by the Advisory Council, Federal agency actions should 

also abide by the policy statement set forth in the American Indian Religious Freedom 

Act (AIRFA), 42 U.S.C. §1996, and by Executive Order 13007, Indian Sacred Sites (May 

24, 1996), published at 61 Fed. Reg. 26771; also published at 42 U.S.C.A. §1996 notes. 

 C. NAGPRA Consultation. 

 The Native American Graves Protection and Repatriation Act (NAGPRA), 25 

U.S.C. §§3001-3013, 18 U.S.C. § 1170, has been described as human rights legislation. 

NAGPRA recognizes that Native Americans (including Native Hawaiians) regard the 

physical remains of their ancestors, funerary offerings and other kinds of cultural items as 

holding great religious significance. NAGPRA includes provisions for the repatriation of 

human remains and other cultural items from museums and federal agencies to tribes, and 

for the protection of Native American human remains and other cultural items located on 

(or embedded within) federal lands and tribal lands. This Consultation Plan addresses the 

graves protection provisions of NAGPRA, rather than the repatriation provisions. The 

graves protection provisions of NAGPRA apply to Native American Native American 

human remains and other “cultural items” located on federal lands and within the 

boundaries of Indian reservations. 25 U.S.C. §3002. For purposes of NAGPRA, the 

term “cultural items” includes funerary objects, sacred objects, and objects of cultural 

patrimony. The statutory requirements are implemented through regulations issued by 

the National Park Service (NPS). 43 C.F.R. part 10. 
21

 It is important for all agencies and organizations to understand that Native 

American human remains and cultural items covered by NAGPRA hold religious 

significance for the tribes. With respect to human remains and cultural items that are 

excavated or removed from federal lands, NAGPRA recognizes the rights of tribes with 

cultural affiliation to human remains and cultural items to take custody of these items. 

For human remains and cultural items excavated or removed from “tribal lands” (i.e., 

lands within reservation boundaries), NAGPRA recognizes rights of ownership or control 

in the tribe “on whose lands such objects or remains were discovered.” 25 U.S.C. §3002. 

 NAGPRA’s graves protection provisions apply in two different contexts: 

intentional excavations and inadvertent discoveries. 43 C.F.R. §§10.3, 10.4. In the event 

of an inadvertent discovery, the regulations require immediate notification, in the case of 

federal lands, to the federal land manager (in this case the National Park Service), or, in 

the case of tribal lands, to the responsible tribal official. The regulations also require the 

cessation of the activity that resulted in the inadvertent discovery. 

 For discoveries on federal lands, the federal land manager must notify all the 

Indian tribes that are likely to be culturally affiliated with the remains or other cultural 

items. If, as a result of an inadvertent discovery on federal lands, a decision is made to 

remove the human remains and/or cultural items from the ground, the removal is treated 

as intentional excavation. 43 C.F.R. §10.4(d) (v). Intentional excavation requires a 

permit issued pursuant to the Archaeological Resources Protection Act (ARPA). In the 

case of either an inadvertent discovery or intentional excavation, NAGPRA requires 

consultation with tribes that are likely to be culturally affiliated with the human remains 

and/or cultural items. 43 C.F.R. §10.5. If the items must be removed from the ground, 

then NAGPRA provides a system for determining who has rights of ownership or 

custodial control over the human remains or cultural items. Briefly, in the case of human 

remains and associated funerary objects, the lineal descendants, if known, have the 

highest priority right of ownership or control. For items found on federal lands, where 

there are no known lineal descendants, the tribe with the strongest claim of cultural 

affiliation has the right of ownership or control. See 43 C.F.R. §10.6. 

 For human remains and cultural items excavated or removed from tribal lands, 

the right of custody is different from that for federal lands. Known lineal descendants 

have the highest priority right for human remains and associated funerary objects (as they 

do on federal lands). If there are no known lineal descendants, and for other kinds of 

cultural items covered by NAGPRA, the tribe with ownership or jurisdiction over the 

lands has the right of ownership or control. Such a tribe could consider a request from 

another tribe asserting a stronger claim of cultural affiliation, but the tribe on whose tribal 

lands the human remains or cultural items were found has no legal obligation to do so. In 

addition, such items can only be lawfully removed from the ground pursuant to a permit 

issued under ARPA (or by the tribe itself, which is exempt from the ARPA permit 

requirement, or by a tribal member pursuant to tribal law), and such a permit can only be 

issued if the tribe with jurisdiction over the tribal lands give its consent. 25 U.S.C. 

§3002(c) (2). 
22

 Accordingly, issues previously noted regarding the location of the boundaries of 

the Hualapai and Navajo Reservations have implications for the application of NAGPRA 

in the event of a discovery of human remains and/or cultural items on lands where the 

location of the reservation boundary is in dispute. With respect to the Hualapai 

Reservation, the likelihood of inadvertent discoveries in area subject to disagreement 

may be relatively slight, given that the lands subject to disagreement are below the high 

water line and, as such, have historically been subject to erosion by the River. With 

respect to the Navajo Reservation, the implications of this disagreement affect a larger 

amount of land. The protocols in part 9 acknowledge that a situation may arise in which 

the resolution of the boundary issue may be necessary. 

 The NAGPRA regulations encourage federal land managing agencies to enter into 

“comprehensive agreements” with tribes that are affiliated with human remains and/or 

cultural items that are likely to be discovered on or excavated from federal lands. 43 

C.F.R. §10.5(f). Such agreements can address all federal agency land management 

activities that could result in inadvertent discoveries or intentional excavations. Such an 

agreement does not exist, and this Consultation Plan does not constitute such an 

agreement. In conjunction with carrying out this Consultation Plan, the tribes and NPS 

may determine that it would be desirable to develop such a comprehensive agreement. 

 D. ARPA Consultation 

 The Archaeological Resources Protection Act (ARPA) applies to “archaeological 

resources” located on federal lands and “Indian lands” (held in trust or subject to federal 

restrictions). 16 U.S.C. §§470aa – 470mm; regulations at 43 C.F.R. part 7. ARPA 

imposes criminal and civil penalties for removing, excavating, damaging or destroying 

such “archaeological resources,” a term that includes human remains and the kinds of 

“cultural items” covered by NAGPRA (if such items are “of archaeological interest” and 

at least 100 years of age). Although ARPA does treat human remains as “archaeological 

resources,” NAGPRA changed the implications of this term by establishing the right of 

custodial control in lineal descendants and culturally affiliated tribes. 

 ARPA imposes a permit requirement for the lawful excavation of such resources. 

 If a permit might result in harm to or destruction of a site that an Indian tribe considers 

as holding religious and cultural importance, then the federal land manager must notify 

the tribe prior to the issuance of a permit. If items subject to such a permit are human 

remains or cultural items covered by NAGPRA, then the federal land manager must 

consult with tribes pursuant to the NAGRPA regulations. 

 E. Endangered Species Act 

 The Endangered Species Act (ESA), 16 U.S.C. §1531 et seq., does not include 

specific statutory requirements to engage tribes in consultation. In recognition of the fact 

that actions taken by the Fish and Wildlife Service (FWS) and National Marine Fisheries 

Service (NMFS) (collectively the “Services”) under the ESA sometimes run into 

conflicts with tribal rights under treaties and statutes, or with federal obligations under 
23

the trust responsibility to tribes, the Secretaries of Interior and Commerce have issued a 

joint Secretarial Order to establish polices and procedures to attempt to reconcile such 

conflicts. Secretarial Order # 3206, Subject: American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act (June 5, 1997). 

 This Secretarial Order includes statements of principles, one of which in 

particular is relevant to this Consultation Plan. Principle 5 states, “The Departments shall 

be sensitive to Indian culture, religion and spirituality.” The text following the statement 

of this principle says, in part: 

“The Departments shall take into consideration the impacts of their actions and 

policies under the Act on Indian use of listed species for cultural and religious 

purposes. The Departments shall avoid or minimize, to the extent practicable, 

adverse impacts upon the noncommercial use of listed sacred plants and animals 

in medicinal treatments and in the expression of cultural and religious beliefs by 

Indian tribes.” 

 In the context of this Consultation Plan, tribal concerns regarding activities taken 

pursuant to the ESA overlap with tribal concerns about historic places (including 

traditional cultural properties) and other resources that are important for religious and/or 

cultural reasons. From the perspectives of the Tribes, the consultation requirements of 

the federal cultural resources statutes, especially the procedural requirements of NHPA 

consultation can be adequate, in some situations, to ensure that tribal concerns regarding 

the ESA, if federal agency ESA activities affect places that are recognized as eligible for 

the National Register of Historic Places. 

 In cases in which specific plant or animal species, or the places at which they are 

found, do not meet the criteria for consideration under the NHPA, many plants and 

animals, some of these plant or animal species may nevertheless be important to one or 

more of the Tribes for cultural and/or religious reasons. Under the Secretarial Order, 

particularly Principle 5, the FWS has a responsibility to consult with the Tribes regarding 

actions under ESA to determine the nature of tribal religious and/or cultural concerns and 

how to respond to such concerns. 

 In addition, for activities within Reservation boundaries, the Secretarial Order, in 

Principles 1 and 2, recognizes tribal authority over tribal lands and that Indian lands not 

federal public lands. Moreover, the text following Principle 1 explicitly states, 

“Except when determined necessary for investigative or prosecutorial law 

enforcement activities, or when otherwise provided in a federal-tribal agreement, 

the Departments, to the maximum extent practicable, shall obtain permission from 

tribes before knowingly entering Indian reservations and tribally-owned fee lands 

for purposes of ESA-related activities, and shall communicate as necessary with 

the appropriate tribal officials.” (Emphasis added.) 

 F. Tribal Laws 
24

 Tribal laws may impose requirements that go beyond consultation, including 

requirements for tribal consent or permission. This Consultation Plan does not attempt to 

offer a comprehensive discussion of applicable tribal laws, but rather provides only 

summary information. Through consultation pursuant to the protocols in pat 8 of this 

Consultation Plan, NPS and each of the tribes whose reservations include land within the 

Grand Canyon will address the possibility of using stipulations in permits issued by NPS 

to ensure compliance with tribal laws. 

 (1) Hualapai Laws 

 The Hualapai Tribe has established a general permit requirement for any 

nonmember to be present within the part of the Hualapai Reservation that is not open to 

the public. All portions of the Reservation that can be accessed through the Colorado 

River are subject to this permit requirement. 

 With respect to cultural resources, a specific permit program has been authorized 

in the Hualapai Cultural Heritage Resources Ordinance (HCHRO), section 305. This 

permit program has not yet been implemented. Accordingly, permits for the excavation 

and removal of archaeological resources, and for human remains and cultural items 

covered by NAGPRA, are issued by the BIA, subject to tribal consent. The requirement 

for an ARPA permit does not apply to tribal employees engaged in properly authorized 

official business. 16 U.S.C. §470cc (g) (2); HCHRO §306. 

 (2) Navajo Laws 

[Note: This section should be drafted by Navajo Nation representatives.] 

 (3) Havasupai Laws 

[Note: Possible addition of a section on Havasupai laws. Although outside the 

River Corridor, the Havasupai Reservation is frequently accessed from the River, 

and the NPS permit system could be used to inform permit holders regarding 

tribal laws.] 

8. PROTOCOLS FOR DIFFERENT TYPES OF CONSULTATION. 

 This Consultation Plan addresses consultation in three different contexts: (a) ongoing consultative relationships among the tribal parties and federal agencies; (b) 

consultation that takes place within the framework of regularly-scheduled meetings as 

part of the AMP; and (c) consultation regarding specific actions that require compliance 

with federal statutes and regulations. The processes or mechanics of the three kinds 

differ and are described here. Protocols for the first two kinds of consultation are set out 

in this section; protocols for specific actions that require compliance with federal statutes 

and regulations are set out in Part 9. 
25

 The Colorado River corridor downstream of Glen Canyon Dam contains many 

places and resources that are important to one or more of the Tribes for a variety of 

reasons, including cultural, religious and/or historic reasons. Many of these places and 

resources are subject to the provisions of federal laws and regulations – NEPA, NHPA, 

NAGPRA and ARPA – that contain specific requirements for consultation with Indian 

tribes. The categories that are used to describe these places and resources often overlap, 

and some of these places and resources are subject to the provisions of two, three or all 

four of these statutes. Some of these places are also locations at which activities have 

been taken or are planned under the auspices of the AMP to carry out the policies of the 

Endangered Species Act (ESA). 

 The use of categories for the places and resources covered in this Consultation 

Plan is discussed further in Part 9, which sets out protocols for compliance with federal 

laws in specific contexts. Part 9 most likely does not anticipate all the specific issues that 

may arise. In the process of carrying out on-going consultation as provided in subsection 

8.A and by using regularly scheduled meetings to accomplish some of the objectives of 

consultation, as provided in subsection 8.B, it may become apparent that there is a need 

to specify greater detail on certain aspects of consultation. If it proves necessary, this can 

be accomplished through the development of separate documents that may be adopted as 

addenda to this Consultation Plan. Conversely, consultation pursuant to subsections 8.A 

and 8.B may prove to be sufficiently effective that there is in fact no need for such an 

addendum specifying additional detail. 

 A. On-Going Consultation Relationships 

 In order to develop and maintain on-going consultative relationships, the federal 

agencies and the tribes agree to meet as follows:7

(1) One meeting per year of all the federal agencies engaged in the AMP (BOR, 

NPS, FWS, BIA, USGS, GCMRC and WAPA) and all the tribes together will 

be held. 

(2) At least four separate meetings will be held of the tribes and GCMRC for the 

purposes of examining future research needs and methodologies and 

identifying potential areas of conflict between research activities and tribal 

values. 

(3) The tribes will have at least one meeting among themselves, for the purpose 

of preparing for the annual meeting with all the agencies and the meetings 

with GCMRC. 

(4) Each agency will have a separate meeting with each tribe at least once per 

year; at least once every two years, this meeting will take place at tribal 

offices. With the consent of the tribe, the annual meeting with an agency may 

include two or more of the federal agencies at the same meeting. 
26

(5) There will be at least one meeting per year of representatives of all of the 

entities that are parties to the PA. 

 All such meetings shall be in addition to all the regular meetings as part of the 

AMP, that is, in addition to AMWG and TWG meetings. The time and place for all such 

annual meetings shall be agreed upon and set at least thirty (30) days prior to the 

meeting. A tentative agenda will be circulated when the date and time is announced, 

with the understanding that all parties may suggest the addition of new items during any 

meeting. If any matter is on the agenda for which a federal agency decision is anticipated 

during the upcoming year, the agency will ensure that the official authorized to make the 

decision is in attendance. If a tribe is asking an agency to make certain commitments to 

the tribe, and the agency has the authority to make such commitments, the official with 

such authority will attend the meeting. Similarly, if an agency is asking a tribe to make a 

decision or take a position on an issue, the tribal official(s) with the appropriate authority 

will attend the meeting. If for any reason the appropriate agency or tribal official cannot 

attend the meeting, the agency or tribe will make best efforts to make alternative 

arrangements for a meeting between the appropriate officials. 

 B. Consultation in Regularly-Scheduled Meetings 

 The discussion of issues in regularly scheduled meetings of the AMP may 

constitute a step in the consultation process, but in and of itself, such a meeting is 

generally not sufficient for purposes of consultation. Representatives of the agencies and 

organizations engaged in the AMP should understand that meetings of the AMWG and 

TWG are alien environments for tribal representatives, in the way in which discussions 

are held and with respect to the attitudes conveyed regarding traditional tribal knowledge. 

 In addition, tribal representatives sometimes find it hard to participate in AMWG and 

TWG meetings because of the behavior patterns of some non-Indian representatives, 

which tribal representatives regard as inappropriately assertive and aggressive, and 

sometimes confrontational. Accordingly, tribal representatives may need to engage 

federal agency representatives in consultative discussions both before and after AMWG 

and TWG meetings. 

 (1) Kinds of Meetings 

 (a) Meetings of the AMWG. Meetings are held biannually or 

more frequently as deemed appropriate by the designated federal official. In accordance 

with the Federal Advisory Committee Act (FACA), a written notice of each meeting of 

the AMWG is published in the Federal Register at least 15 days prior to the meeting, 

advising of the date, the place, and purpose of the meeting. In accordance with FACA, all 

meetings of the AMWG are open to the general public. Any organization, association, or 

individual may file a written statement, at the discretion of the AMWG, and provide oral 

input regarding topics on the meeting agenda, in accordance with FACA. 
27

 (b) Meetings of the TWG. Technical Work Group (TWG) 

meetings are held quarterly or more frequently as required. Where possible meetings are 

scheduled two to three months in advance. Information will be provided to all interested 

parties or members. Reclamation is responsible for submitting meeting notices to be 

published in the Federal Register 15 days prior to the meetings. The Chairperson, in 

consultation with the Vice-Chair and the GCMRC, of the TWG drafts a meeting agenda 

and a reminder notice to the TWG members and the staff and distributes it at least 10 

days prior to the meeting. Sixteen TWG members must be present to constitute a quorum 

for voting purposes. 

 (c) Meetings of AMWG and TWG Ad Hoc Work Groups. 

Meetings are held as often as necessary to accomplish the task that has been assigned to 

them by the AMWG or TWG. (These ad hoc work groups can be comprised of official 

TWG or AMWG representatives with the additional inclusion of a technical individual 

who is not a representative of a TWG or AMWG party if necessary to improve the 

group’s effectiveness). In general, any member may propose a meeting, just as any 

member may propose agenda items. 

 (d) Meetings of the PA Work Group. Meetings are held at least 

once a year as determined by the members of this group. In general, because this work 

group is specifically concerned with carrying out the PA on cultural resources, and 

because the members of this work group have expertise in this subject, meetings of this 

work group may very well contribute to consultation. Nevertheless, these meetings 

should not be considered to be sufficient for the purposes of consultation on any specific 

matter unless the concerned parties are in agreement that no further consultation is 

necessary. 

 (2) Generally Applicable Provisions for Meetings 

 (a) Meeting Agendas. Any stakeholder in the AMP, including the 

Tribes, may propose a meeting or suggest an agenda item for a meeting. Proposals for 

agenda item additions or meetings should be made to the Secretary’s Designee in the case 

of AMWG meetings and the Chairperson in the case of the TWG. Proposed agenda item 

additions or meetings can also be made in care of the Bureau of Reclamation, Upper 

Colorado Regional Office. Agenda item addition requests should be made in writing, 

email, or by phone. 

 (b) Notification. 

For AMWG and TWG meetings, notice of meetings is a formal requirement, as noted 

earlier. For other groups that are established either by AMWG or TWG, a concerned 

tribe should become a member of the group or otherwise make arrangements to ensure 

that it receives notice of meetings. In the event that any regularly scheduled meeting will 

include discussion of a compliance issue, the agency with lead responsibility for the 

compliance issue will ensure that concerned tribes receive notice that the issue will be on 

the agenda. 
28

For meetings on the PA/HPP, notice will be provided by Reclamation after discussions 

with PA signatories to determine the necessity for a meeting and the agenda item(s) to be 

discussed. 

 (c) Scheduling Conflicts. The Parties understand that there may 

be individual tribal or federal activities that may make it difficult for the officially 

designated or alternative tribal or federal agency representative to attend a given meeting. 

All AMP stakeholders will attempt to avoid scheduling conflicts and to maximize tribal 

participation in all meetings of tribal interest. If the official tribal representative for a 

particular group is unable to attend, the Tribe may send an alternate. 

9. PROTOCOLS FOR CONSULTATION FOR COMPLIANCE ON SPECIFIC ISSUES

 As noted in section 8, the categories that are used to describe the kinds of places 

and resources that are the subject of this Consultation Plan often overlap. Accordingly, 

for purposes of the Protocols set out in this section of the Consultation Plan (herein the 

“Section 9 Protocols”), an explanation of the categories used is necessary. 

 A. Explanation of Categories of Places/Resources and Actions 

 Because the categories typically used to describe the places and resources that are 

the subject of this Consultation Plan overlap, and because these places and resources can 

be affected by a range of activities taken by or authorized by the parties to the AMP 

and/or PA, it is necessary to explain the categories used in this section of the 

Consultation Plan. 

 As noted in section 3.C of this Consultation Plan, the Final EIS used three basic 

categories to classify “cultural resources”: “archaeological sites,” “isolated occurrences,” 

and “Native American traditional cultural properties and resources.” The EIS includes 

some discussion of human remains and other “cultural items” covered by NAGPRA 

(“funerary objects,” “sacred objects,” and “objects of cultural patrimony”), and says, 

“Potential impacts to human remains and objects are addressed in the PA on Cultural 

Resources and the accompanying monitoring an remedial action plan.” Final EIS, p. 318. 

 The PA on Cultural Resources, however, does not expressly address human remains and 

cultural items covered by NAGPRA. 

 The “Final Draft Information Needs” for the AMWG and TWG (Dec. 14, 2001) 

(herein “INs Document”) uses a somewhat different approach to classification. As 

discussed under Goal 11, “Preserve, protect, manage and treat cultural resources for the 

inspiration and benefit of past, present and future generations,” the INs Document uses 

two categories: “historic properties” and “traditionally important resources.” The term 

“historic properties” as used in the INs Document means properties that are eligible for 

the National Register and includes both archaeological sites and traditional cultural 

properties. The term “traditionally important resources” is used to describe resources 
29

that are not “historic properties” (in the sense of being eligible for the National Register), 

but are nevertheless important resources to the tribes and therefore important resources 

for consideration under the AMP. The INs Document also uses the term “traditional 

cultural resources,” to include both of the categories “historic properties” and 

“traditionally important resources.” Like the Final EIS, the INs Document does not 

expressly address human remains and cultural items covered by NAGPRA, but rather 

focuses mainly on compliance with NHPA, NEPA, and ESA. 

 The INs Document identifies a number of information needs relating to these 

places and resources and the effects of dam operations and other activities on these places 

and resources. Some of the listed Information Needs are particularly relevant for the 

organization of this section of this Consultation Plan, including Research Information 

Needs 11.12c and 11.1.2d: 

“Identify AMP activities that affect National Register eligible sites.” 

“Identify NPS permitted activities that affect National Register eligible sites.” 

 One inference that can be drawn from these Information Needs is that neither 

NPS nor the other parties that are engaged in the AMP have a comprehensive 

understanding of the range of activities and natural processes that may affect historic 

properties in the River Corridor. Under Management Objective 11.2 – “Preserve 

resource integrity and cultural resource values of traditionally important resources within 

the Colorado River Ecosystem” – the INs Document lists five information needs, some of 

which raise rather sweeping implications about the need to know more about how AMP 

activities may affect these resources. Similarly, Effects Information Need 11.3. says, 

“Determine if and how experimental flows and other AMP actions restrict tribal access 

[to traditional cultural resources].” Moreover, Management Objective 11.3 says: 

“Protect and maintain physical access to traditional cultural resources through 

meaningful consultation on AMP activities that might restrict or block physical 

access by Native American religious and traditional practitioners.” 

This objective recognizes that consultation is essential for the other stakeholders in the 

AMP to understand how AMP activities may affect resources that are important to the 

Tribes for cultural and religious reasons. 

 In light of the breadth of the identified needs for information, both in terms of the 

nature of the places and resources of concern to the Tribes and the range of activities that 

may affect these places and resources, the basic approach taken in the Part 9 Protocols 

(consultation regarding compliance on specific issues) is as follows: 

Places and Resources. The Part 9 Protocols use categories that correspond to the 

federal cultural resource laws. Using these categories, the Part 9 Protocols move 

from broad categories to more narrow ones. In one sense, the categories become 

narrower because the characteristics that define such places and resources operate 

to exclude places and resources that do not fit. In another sense, the categories 
30

become narrower because the protective regimes established by the federal laws 

only apply if certain actions are taken. The order of used in this Part is not 

intended to convey a sense of hierarchy in that any given requirement is more 

important that another – rather, proceeding from general to specific simply seems 

more pragmatic. In general, the progression is: 

(1) NEPA (general environmental impact assessment); 

(2) NHPA (historic property) inquiry; 

(3) NAGPRA (human remains and/or “cultural items”) inquiry; 

(4) ARPA (archaeological resources) inquiry; 

(5) Executive Order 13007 (sacred sites) inquiry and American Indian 

Religious Freedom Act. 

Actions. The Part 9 Protocols identify certain kinds of actions that are generally 

subject to consultation requirements. To ensure that activities that are not 

captured by inclusion in the list are in fact considered to determine if consultation 

is required and whether any specific legal requirements apply, these Protocols call 

for such determinations to be made through consultation. 

 Categories of actions are discussed first because the discussion of actions is 

considerably shorter than the section setting out protocols for specific kinds of places and 

resources. 

B. Categories of Actions Subject to this Consultation Plan 

 A variety of activities taken by parties engaged in the AMP and by parties to the 

PA/HPP may result in affects on places and resources subject to this Consultation Plan. 

The kinds of activities that may affect these places and resources include: operations of 

Glen Canyon Dam; river trips by parties engaged in the AMP; activities for monitoring 

and restoration of endangered species; activities of private parties made possible by 

parties engaged in the AMP. For many of these activities, it is sometimes difficult to 

determine whether, or at what point, there is a Federal agency action that triggers the 

applicability of the requirements of the Federal cultural resources laws. Accordingly, this 

section seeks to make it easier to determine what Federal agency actions should trigger 

consultation. 

(1) Kinds of Federal Actions that Trigger Consultation under These 

Protocols 

(a) Any action for which the Federal agency determines that documentation must 

be prepared for purposes of compliance with the National Environmental Policy 

Act (NEPA) requires consultation under these Protocols, whether the level of 

documentation is an EIS or an EA. The extent to which consultation will be 

required for actions treated as categorical exclusions will be subject to discussions 

in meetings pursuant to the protocols in part 8. 
31

(b) A federal action that is not specifically addressed in the HPP will be 

considered to be an “undertaking” – unless determined by the federal agency not 

to be an “undertaking” after consultation pursuant to Part 8 or 9. 

(c) Actions taken as part of program for monitoring or restoration of endangered 

species require consultation under these Protocols, unless through consultation 

under subsection 9.B (2), a decision has been reached that consultation is 

unnecessary for the specific action or category of actions. 

(d) Any other action that is funded, approved, or promoted by the AMP is 

considered to be a federal action (because any such action must be either 

approved, licensed, permitted or funded by a federal agency, e.g., BOR, GCMRC, 

NPS). This specifically includes research, monitoring and management actions 

carried out by GCMRC or funded by GCMRC. 

(e) Any river trip, because any such trip requires permission from NPS. 

 (2) Consultation to Determine whether to Consult 

 In the context of consultation under Subsections 8.A and 8.B, Federal agencies 

and the Tribes will consider the full range of activities conducted under the auspices of 

the AMP and PA/HPP and determine appropriate points for consultation to take place. 

C. Protocols for Categories of Places and Resources 

 The order of discussion in this section follows that set out in earlier in this part, 

with subheadings corresponding to each major category of consultation. Under these 

subheadings, the protocols are set out, designated with lower case letters. In order to 

reduce the potential for confusion in referring to these protocols, the system of 

designation is sequential – the designation runs from (a) through (h) without regard to the 

sub-headings, so that there is only one “protocol (a)” and so on. (For some of the 

protocols, though, there are several steps.) 

 (1) NEPA Consultation 

Protocol (a) – NEPA documents. For any proposed federal action for which the 

responsible federal agency determines that a NEPA document will be prepared, whether 

the document is an EIS or an EA, the agency shall provide notice to each of the Tribes at 

least as early as the “purpose and need” phase of the preparation of the NEPA document. 

 Upon request of a Tribe, the agency will consult with the Tribe regarding possible 

involvement in the preparation and/or review of the NEPA document. 

 (2) Historic Properties – NHPA Consultation 
32

Protocol (b) – Actions that are specifically addressed in the Historic Preservation 

Plan (HPP). For any action that is specifically addressed in the HPP, compliance with 

the terms of the HPP will constitute consultation for purposes of this Consultation Plan.8

 

Protocol (c) – Actions that are not specifically addressed in the Historic 

Preservation Plan (HPP). For any proposed action that is not specifically addressed in 

the HPP, consultation with the Tribes shall include at least the following steps: 

 (c-1) Provide notice to the Tribes, with information. Notice to the tribes shall 

be provided to the contact person specified in Addendum ___, in the manner(s) so 

specified (e.g., email, fax, phone, and letter). To the extent practicable, notice shall also 

be provided to the Tribe’s representatives in the context of on-going consultation 

(Subsection 8.A consultation) and in regularly scheduled meetings of the AMWG, the 

TWG, and the PA work group (Subsection 8.B consultation). Notice to the Tribes shall 

include: 

- a written description of the proposed action (including identification of the 

federal agencies and other entities involved in the action); 

- the location of the proposed action (including a tentative delineation of the area 

of potential effects); 

- a preliminary determination of whether the action would affect historic 

properties and, if so, the nature of likely effects on known properties; and 

- the tentative dates on which the action is planned to occur. 

 To the extent practicable, the notice will be provided to the Tribes as least sixty 

(60) days prior to this tentative date. If the proposed action is subject to time constraints, 

the notice will explain these constraints and inform the Tribes that a response must be 

received by a certain date if the Tribe chooses to engage in consultation regarding the 

proposed action.9

 

 (c-2) Tribal request for consultation. If a Tribe responds to the notice by 

requesting consultation, the responsible federal agency will engage in consultation with 

tribal representatives. Such consultation will include face-to-face meetings if the Tribe 

so requests, but may also include communication by phone, email and other means. 

 (c-3) Conduct consultation. If a tribe requests consultation the responsible 

federal agency will initiate the consultation process. The main objectives of this 

consultation will be to fulfill the requirements of the consultation process set out in the 

regulations of the Advisory Council on Historic Preservation, 36 C.F.R. part 800, 

including identification and evaluation of historic properties, assessment of effects, and 

resolution of adverse effects. Because actions subject to this Consultation Plan take place 

in a context in which a substantial amount of historic preservation work has already 

occurred, it may be appropriate for some steps in the standard Section 106 process to be 

abbreviated. Whether or not any of the standard steps are abbreviated, this consultation 

shall include at least the following components: 
33

- determine the federal agencies, tribes and other entities that should be invited to 

participate in the consultation; 

- determine the extent to which existing information about historic properties 

(National Register listed or eligible) is adequate, including – 

- whether known historic properties are adequately documented or whether 

there are characteristics of a property that are not adequately documented 

for purposes of determining effects (e.g., a historic property that has been 

determined eligible as an archaeological site that is also a traditional 

cultural property but which has not been documented as such); 

- the likelihood that there are places that would be affected by the action 

that are eligible for the National Register but which have not been 

identified or evaluated (e.g., archaeological sites, TCPs). 

- determine the likelihood that there are places or resources that are subject to 

NAGPRA or ARPA, or that are important to one or more of the Tribes for 

religious or cultural reasons, even though they may not be eligible for the 

National Register or there may not be enough information to make a 

determination of eligibility; and 

- determine whether there are particular needs for confidentiality regarding the 

place or resources at issue. 

(c-4) Consultation for undertakings affecting reservation lands or disputed 

status lands. For undertakings that affecting reservation lands of either of the tribes that 

has an approved THPO program, the THPO will perform the functions that would 

otherwise be performed by the SHPO. If the tribe has, with ACHP approval, established 

its own procedures in lieu of the ACHP regulations, such procedures shall be followed. 

For undertakings affecting places on lands for which the reservation status is subject to 

dispute, the THPO and SHPO will have equivalent status for purposes of the section 106 

process.10 

 (c-5) Outcome of consultation. Consultation will seek to achieve consensus on 

how to proceed with respect to the affects of the proposed action on historic properties 

and/or other places or resources that are important to one or more Tribes for religious 

and/or cultural reasons. 

- If consultation does result in consensus, that outcome shall be recorded in a 

Memorandum of Agreement (MOA). For any proposed action that may have 

effects on historic properties, for an MOA to be valid under this Consultation 

Plan it must be signed by responsible federal agency, any concerned Tribe(s), 

and the AZ SHPO or, if affects would occur within the boundaries of the 

Hualapai or Navajo Reservation, the appropriate THPO. For any proposed 

action with effects on lands for which the reservation status is subject to 

dispute, both the THPO and the SHPO will be required signatories for an MOA. 
34

- If the proposed action would affect historic properties and it does not result in a 

consensus MOA, any Tribe that objects to the proposed action may request the 

ACHP to become engaged in the consultation. 

(3) Cultural Items Protected by NAGPRA 

 Whether or not a place is eligible for the National Register, if there are Native 

American human remains or other “cultural items” (associated funerary objects, 

unassociated funerary objects, sacred objects, objects of cultural patrimony) located at 

the site, then NAGPRA applies. There are two contexts in which the graves protection 

provisions of NAGPRA can apply to actions subject to this Consultation Plan: (1) 

inadvertent discovery situations; and (2) intentional excavations.11

Protocol (d) – Inadvertent discoveries. 

 (d-1) Notice of discovery. In any situation in which activities conducted under 

the auspices of the AMP or the PA and HPP result in the discovery of a place that 

appears to contain human remains and/or other cultural items, the person in charge of the 

activity will ensure that notice is provided as required by the statute. The notice shall be 

provided immediately by telephone and followed up with written confirmation. 43 

C.F.R. §10.4(b).12 

- Notice of any such discovery shall be provided to NPS. 

- In all cases in which the NPS receives such notice, NPS shall notify all of the 

tribes that are likely to be culturally affiliated of the discovery. 

- For any discovery that is within the boundaries of an Indian Reservation, notice 

shall also be provided to the relevant tribe. 

- For any discovery that is within an area subject to disagreement over the 

location of a Reservation boundary, NPS shall notify the tribe that asserts that 

the location is within its Reservation and shall also notify the tribes that are 

likely to be culturally affiliated. 

- Notice to tribes that are likely to be culturally affiliated will advise those tribes 

whether the location of the discovery is within a Reservation or within an area 

that a tribe asserts is within it Reservation.13 

 (d-2) Ceasing activity and protection measures. If the inadvertent discovery 

was caused by AMP or PA/HPP authorized activities (in the sense that the activities 

caused the partial disinterment of human remains or cultural items subject to NAGPRA, 

rather than in the sense that AMP or PA/HPP activities simply put people in a place to 

discover a disinterment caused by the actions of others or by natural causes or by 

operation of Glen Canyon Dam), then the official(s) in charge of the activity that resulted 

in the discovery will stop the activity in the area of the discovery. In any case, the 

person(s) in charge of the activities that led to the discovery will make a reasonable effort 

to protect the human remains and/or cultural items discovered.14 
35

 (d-3) NPS responsibilities for discoveries on federal lands. NPS will be 

responsible for ensuring that the requirements of the NAGPRA regulations are met, 

including: 

- Certifying the receipt of notice; 

- Taking immediate steps, if necessary, to further secure and protect the 

inadvertently discovered human remains and/or cultural items; 

- Ensuring that all of the Tribes receive telephone notice of the discovery, with 

written confirmation; 

- Inviting all of the Tribes to participate in consultation regarding the inadvertent 

discovery, pursuant to §10.5 of the NAGPRA regulations, and managing any 

such consultation that does take place; 

- Ensuring that, if a decision is made that the human remains and/or cultural 

items must be excavated or removed, the requirements of §10.3(b) of the 

NAGPRA regulations will be followed (i.e. treatment as intentional excavation, 

addressed in Protocol (e), below; and 

- Ensuring that, if the human remains and/or cultural items are excavated or 

otherwise removed, the disposition of these items will be carried out 

consistently with §10.6 of the NAGPRA regulations. 

 (d-4) Responsibilities of tribal officials for tribal lands. For any inadvertent 

discovery on tribal lands (i.e., lands within the boundaries of a Reservation), the tribal 

official designated in Addendum __ shall be responsible for ensuring that the 

requirements of the NAGPRA regulations are met, including: 

- Certifying the receipt of notice; 

- Taking immediate steps, if necessary, to further secure and protect the 

inadvertently discovered human remains and/or cultural items; 

- Ensuring that, if a decision is made that the human remains and/or cultural 

items must be excavated or removed, the requirements of §10.3(b) of the 

NAGPRA regulations will be followed (i.e. treatment as intentional excavation, 

addressed in Protocol (e), below); and 

- Ensuring that, if the human remains and/or cultural items are excavated or 

otherwise removed, the disposition of these items will be carried out 

consistently with §10.6 of the NAGPRA regulations. 

(d-5) Discoveries on lands for which reservation status is subject to 

disagreement. Discoveries on such lands will be treated as federal lands for purposes of 

the responsibilities of NPS, until the point at which a decision is made on whether the 

human remains and/or cultural items must be excavated or removed. NPS will consult 

with the tribe that asserts that the land is within its reservation regarding immediate steps 

that may be necessary to further secure and protect the discovered human remains and/or 

cultural items, and the tribe may share the responsibility for taking such steps. In the 

event that NPS determines that the human remains and/or cultural items must be 

excavated or removed, or the tribe that asserts that the land is within its reservation 

makes such a determination, Protocol (e-4) will apply. 
36

 (d-6) Resumption of activity. If the inadvertent discovery was caused by AMP 

or PA/HPP authorized activities, the activity may resume thirty (30) days after the 

certification of the receipt of notice (by NPS or the tribal official), if the activity is 

otherwise lawful. With respect to NPS lands, the activity may also resume if NPS and 

the culturally affiliated Tribe(s) have executed a written, binding agreement that 

incorporates a NAGPRA Plan of Action for the excavation or removal of the human 

remains and/or cultural items, as authorized by §10.4(d)(2) of the NAGPRA regulations. 

Protocol (e) – Intentional Excavations. 

 In any case in which the inadvertent discovery of human remains and/or cultural 

items leads to a decision that the human remains and/or cultural items must be removed 

from the ground, such removal shall be treated as an intentional excavation, subject to 

§10.3 of the NAGPRA regulations. Any other planned activity that may result in the 

excavation of human remains and/or cultural items from NPS lands is also subject to the 

intentional excavation provisions of the NAGPRA regulations. 

 (e-1) Applicability of ARPA permit regulations. NAGPRA requires the 

issuance of a permit pursuant to the Archaeological Resources Protection Act (ARPA) 

prior to the intentional excavation of any human remains and/or cultural items. 

NAGPRA requires that, prior to the issuance of an ARPA permit for federal lands, the 

federal agency must consult with concerned Indian tribes; with respect to tribal lands, 

consent of the governing tribe is required, and the Tribe itself is exempt from the permit 

requirement. With respect to federal lands, the ARPA regulations provide that “Persons 

carrying out official agency duties under the Federal land manager’s direction, associated 

with the management of archaeological resources” are not required to obtain a permit. 43 

C.F.R. §7.5(c). (The Federal land manager, however, is nevertheless responsible for 

ensuring that the requirements of §§7.7, 7.8 and 7.9 of the ARPA regulations are met.) 

Accordingly: 

- For any intentional excavation on NPS land, NPS will be responsible for 

ensuring that the applicable requirements of the ARPA regulations and the 

NAGPRA regulations will be met, even though an ARPA permit may not be 

required. 

- For any intentional excavation on tribal lands, the BIA will be responsible for 

determining if an APRA permit is required, the BIA will also be responsible for 

issuing any such permit; each Tribe will determine whether its laws require a 

tribal permit; 

 (e-2) Consultation for excavations on federal lands. Prior to the issuance of a 

permit for the excavation of human remains and/or cultural items subject to NAGPRA, 

NPS will be responsible for ensuring that consultation with the Tribes pursuant to §10.5 

of the NAGPRA regulations. Any Tribe that is, or is likely to be, culturally affiliated 

with the human remains and/or cultural items at issue, has a right to be invited to 
37

participate in this consultation. §10.5(a)(2). Accordingly, NPS will routinely invite all 

of the Tribes to participate in any such consultation, leaving the decision to each Tribe 

whether or not it chooses to participate. Consultation is concluded with a “written plan 

of action” which includes the items listed in §10.5(e). A written plan of action for 

intentional excavation must include a determination of cultural affiliation, and 

consequently, which Tribe has the right to custodial control of the human remains and/or 

cultural items, pursuant to §10.6.15 (In the event that the tribes and NPS enter into a 

comprehensive agreement pursuant to §10.5(f), the terms of such an comprehensive 

agreement may supersede these protocols.) 

Since compliance with NAGPRA does not relieve the federal agency of its 

responsibilities for compliance with NHPA section 106, consultation with the Tribes for 

purposes of NAGPRA compliance will include a review of information relevant to 

compliance with NHPA and a determination, by the federal official, of whether the 

activity requires further action for compliance with NHPA (which will generally be 

conducted in accordance with Protocol (b) or (c)). 

 (e-3) Consent for excavations on tribal lands. For any excavation on tribal 

lands (i.e., within the boundaries of any Reservation), consent of the governing Tribe is 

required. In any such case, the governing Tribe will determine which tribal laws apply 

and what the requirements of those tribal laws are. The BIA will determine if an ARPA 

permit is required, and, if so, will be the permit-issuing agency. 

(e-4) Excavations on lands for which reservation status is subject to 

disagreement. In the event that an intentional excavation is planned for land subject to 

disagreement regarding its status as within an Indian reservation (generally circumstances 

described in protocol (d-5), NPS and the tribe will consult on whether it is necessary or 

advisable to reach a definitive resolution of the underlying boundary issue prior to 

excavation or removal. NPS will also consult with the other tribes that are likely to be 

culturally affiliated or that have a demonstrated cultural relationship with the human 

remains and/or cultural items. If an agreement on how to proceed is reached among NPS 

and all the consulting tribes, that agreement will govern the particular excavation or 

removal; such an agreement may specifically provide that it does not resolve the 

underlying boundary issue. If the tribe that asserts reservation status determines that the 

underlying boundary issue must be resolved, the excavation or removal will not take 

place until the tribe has had a reasonable opportunity to seek resolution of the issue by a 

tribunal with jurisdiction. 

 (e-5) Disposition of human remains and/or cultural items from Federal 

lands. For any human remains and/or cultural items that are excavated or removed from 

NPS lands, NPS will be responsible for ensuring that the ultimate disposition is 

consistent with NAGPRA and its implementing regulations. For any such items that NPS 

determines shall be removed from the earth, assuming that a determination of cultural 

affiliation has been made prior to removal, NPS may allow the removal to be carried out 

under the authority of the culturally affiliated Tribe according to religiously or culturally 

prescribed means rather than through archaeological excavation. 
38

 (e-6) Disposition of human remains and/or cultural items from tribal lands. 

For any human remains and/or cultural items that are excavated or removed from tribal 

lands, NAGPRA provides that the right of custodial control is vested in the governing 

tribe (unless there are known lineal descendants). In any such case, a Tribe that asserts a 

claim of cultural affiliation with the human remains and/or cultural items may ask the 

governing Tribe to release the human remains and/or cultural items to its custody. How 

to respond to any such request is strictly a matter for the governing Tribe to decide. 

 (4) Sites Protected by ARPA – Archaeological Resources 

 ARPA applies to “archaeological resources,” which is defined to mean “any 

material remains of human life or activities which are at least 100 years of age, and which 

are of archaeological interest.” 16 U.S.C. §470bb(1); 43 C.F.R. §7.3(a). The term 

“archaeological resources” includes human remains and cultural items protected by 

NAGPRA, provided that such items or more than 100 years of age and possess 

archaeological interest. (Moreover, since an ARPA permit is required for the excavation 

or removal of human remains and/or cultural items covered by NAGPRA, the 100 years 

of age and archaeological interest factors are not really relevant.) There are, however, 

many kinds of archaeological resources that are not covered by NAGPRA. 

Protocol (f) – Archaeological resources on Federal lands 

 NPS is responsible for ensuring that any excavation or other removal of 

archaeological resources from NPS lands is conducted in accordance with ARPA and its 

implementing regulations. Since it is often difficult to determine if human remains 

and/or cultural items covered by NAGPRA are present at a site prior to excavation, NPS 

will proceed on the assumption that such NAGPRA-protected resources are likely to be 

present. Accordingly, all planned ground disturbing activities will require a NAGPRA 

plan of action. 

Protocol (g) – Archaeological resources on tribal lands. 

 BIA is responsible for determining if ARPA applies to the excavation or removal 

of archaeological resources for land within the boundaries of the Hualapai or Navajo 

Reservation. BIA is similarly responsible for issuing any ARPA permit that is required, 

and for ensuring compliance with the requirements of ARPA and its implementing 

regulations. An ARPA permit requires the consent of the Tribe with jurisdiction over the 

reservation. As noted in section F of Part 7 of this Consultation Plan, tribal laws regulate 

the excavation of archaeological resources within the Hualapai and Navajo Reservations. 

 In any case in which the BIA is considering the issuance of an ARPA permit, in the 

context of that permit process the relevant Tribe will have an opportunity to determine 

whether tribal laws apply to any such excavation or removal. 

 (5) Sacred Sites subject to AIRFA and Executive Order 13007 
39

Protocol (h) – Indian sacred sites. 

 AIRFA establishes federal policy of protecting the right of Indian people to 

conduct traditional religious practices at sites that hold religious importance, a policy that 

is reinforced by Executive Order 13007 with respect to Indian sacred sites on federal 

lands. If any proposed action or on-going activity may result in adverse impacts on an 

Indian sacred site, as defined in Executive Order No. 13007, the concerned Tribe(s) and 

federal agency(ies) may initiate (or continue) consultation pursuant to the NHPA 

consultation provisions of these Protocols (Protocols (b) and (c)). In the alternative, the 

Tribes and federal agency(ies) may engage in consultation to accommodate tribal access 

to and use of the sacred site without exploring issues relating to whether the site is 

eligible for the National Register. It may be possible for adequate accommodation to be 

realized without engaging in NHPA consultation. This does not relieve the Federal 

agency of its responsibilities under NHPA; rather, sacred sites consultation under this 

subsection should inform the Federal agency’s conduct in carrying out NHPA 

consultation. (For example, a sacred site may be potentially eligible for the National 

Register as a TCP, but if adequate accommodation can be realized without using the 

NHPA process, the concerned Tribe may decide not to provide the information that 

would be needed for evaluating National Register eligibility.) 

10. CONFIDENTIALITY

 The Parties recognize that inherent contradictions may arise between mandates 

for dissemination of information into the public domain and tribal traditions or 

restrictions on dissemination and control of knowledge or information. With respect to 

information relating to the location or character of a traditional cultural property, the 

agencies are authorized under section 9 of the Archaeological Resources Protection Act, 

16 U.S.C. §470hh, and under section 304 of the National Historic Preservation Act, 16 

U.S.C. 470w-3, to withhold information from disclosure in certain circumstances. The 

Tribes recognize, however, that these statutory provisions are less than completely 

satisfactory for preserving the confidentiality of information that the Tribes regard as 

sensitive. The Tribes and Federal agencies will consult regarding ways to preserve the 

confidentiality of sensitive information. 

 Accordingly, the Tribes will generally confine their discussions of sensitive 

matters to consultation meetings with Federal agency representatives. Federal agency 

representatives will assist tribal representatives in limiting the scope of information 

revealed so that the objectives of the federal statutes can be fulfilled without need for 

specific information about religious practices; Tribes will generally not reveal more 

information about religious practices than is necessary to determine the historic

significance of places and to assess the nature of effects on such places. 

 In the context of meetings of the AMWG, TWG and other AMP groups, the 

Tribes are asked only to provide information to the Agencies or other AMP stakeholders 

when that information is not privileged or restricted and subject to the agencies need to 
40

know to make informed decisions. The Tribes understand that information provided in 

such AMP meetings will be treated by other stakeholders as unrestricted. Conversely, 

the Agencies are asked to disseminate information or knowledge to the Tribes and the 

general public in compliance with the Government in the Sunshine Act, the Federal 

Acquisition Regulation, and the Presidential Memorandum on Openness and 

Confidentiality (Oct. 14, 1993). 

11. FUNDING OF TRIBAL PARTICIPATION AND CONSULTATION 

Tribes are funded under separate cooperative agreements with the agencies to ensure 

government-to-government consultation occurs. Accordingly, issues relating to funding 

are not addressed in this Consultation Plan. Parties engaged in the AMP and parties to 

the PA/HPP should be aware that the funding needs of the Tribes are not static – funding 

that may have been adequate in the early years of the AMP may no longer be sufficient. 

In the Strategic Plan for the Adaptive Management Program (Final Draft, August 17, 

2001), the AMWG FACA Committee Guidance (Appendix B), says: “Certainly the 

direct impacts of the dam operations on the Native American trust resources within the 

park units can and should be funded from hydropower revenues, but such impacts outside 

the boundaries of the river corridor in the park units must be studied using other 

appropriated funds.” 

12. MEASURING AND TRACKING CONSULTATION

 In the experience of tribal representatives, Federal agencies seem to have 

impressions about the effectiveness of consultation that differ from the impressions of the 

Tribes. Accordingly, it is important to establish a mechanism to evaluate the 

effectiveness of consultation from both sides. As an initial approach, each of the Federal 

agencies and each of the Tribes will keep track of the number of consultations that occur 

in each fiscal year, categorized in accordance with Parts 8 and 9 of this Consultation 

Plan. For each matter that is the subject of consultation, each Federal agency and each 

Tribe will record the number of times that consultation events occurred regarding that 

matter (whether face-to-face, by phone, or by other correspondence) and the dates on 

which such consultation events occurred. Not every contact need be recorded as 

consultation; if it is not clear from the circumstances, the parities should reach an 

understanding of whether the contact is part of consultation on a particular matter. For 

each such matter that is treated as consultation, each Federal agency and each Tribe will 

indicate whether the consultation resulted in a satisfactory outcome using a four-point 

scale (satisfactory, somewhat satisfactory, somewhat unsatisfactory, and unsatisfactory). 

This evaluation should focus on the satisfactoriness of the process, rather than the 

outcome, but the parties may also choose to record comments regarding outcomes. 

Narrative reports of consultation matters may also be offered. 
41

 Within sixty (60) days of the end of each fiscal year, the Tribes and Federal 

agencies will exchange reports. These reports shall be discussed in consultation meetings 

pursuant to Section 8.A and 8.B.16

13. DISPUTE RESOLUTION

 Should any Tribe or agency (or, with respect to the AMP, other stakeholder) 

object in writing to any of the other parties regarding any action carried out or proposed 

with respect to the AMP or the PA/HPP, the parties shall consult to try to resolve the 

objection. 

 A. AMP Activities 

 If after initiating such consultation the parties determine that the objection cannot 

be resolved through consultation, then the objecting party shall forward all 

documentation relevant to the objection to the Secretary’s Designee or the Secretary of 

the Interior, including their proposed response to the objection. Within 30 days after 

receipt of all pertinent documentation, the Secretary’s Designee or Secretary shall 

exercise one of the following options: 

(1) Advise the objecting party the Secretary (or Secretary’s designee) concurs in 

the proposed response to the objection, whereupon the relevant parties will respond to the 

objection accordingly; 

 (2) Provide the parties with recommendations which they shall take into account 

in reaching a final decision regarding response to the objection; or 

 (3) Bring in a mediator or professional skilled in alternative dispute resolution to 

assist with resolving the objection, issue or dispute. 

 Recognizing that the primary role of the AMWG is to provide recommendations 

to the Secretary’s designee, if Tribe objects to a proposed recommendation to the 

Secretary’s designee, and the AMWG decides to present the recommendation to the 

Secretary’s designee in spite of the Tribe’s objection, the Tribe has the option of 

submitting a minority opinion report to accompany the recommendation to the 

Secretary’s designee. In such a case, other parties in the AMWG, including other Tribes, 

have the option to join in such a minority report. Alternatively, objecting parties can 

express their objections in a meeting so that their objections are recorded in the minutes, 

and they can abstain from voting. 

B. PA and HPP Disputes 

 In the event that a dispute arises in the context of the PA or HPP, any such dispute 

may be resolved in accordance with the dispute resolution clause of the PA or HPP, if 
42

applicable. In addition, since activities conducted in the context of the PA or HPP take 

place within the framework of otherwise applicable federal regulations, other 

administrative processes may be available. One way to resolve a dispute arising in the 

context of the PA is to dissolve the PA and return to following the ACHP regulations (36 

C.F.R. part 800). 

C. Availability of Other Administrative Appeal Processes 

 The responsible federal official shall inform a Tribe filing a written objection if 

any administrative appeal process is available for resolution of the dispute. In the context 

of the AMP, the Secretary’s designee will be responsible for providing this information 

to the Tribe. In the context of PA or HPP activities, the Federal agency responsible for 

the proposed action that is the subject of the dispute will so advise the Tribe. 

 

1 This addendum has not yet been drafted. It will be a short list of references, including citations 

to some of the documents on the Office of American Indian Trust web site. A written list as an

addendum to this Consultation Plan is considered advisable, in part because web sites change. 

2 Executive Order 13175 has been endorsed by the Bush Administration. A letter from Alberto 

Gonzales, Counsel to the President, to Congressman Frank Pallone (D-NJ) (June 19, 2002), to 

this effect was published in Indian Country Today. To my knowledge, the Administration has not 

issued a formal document to this effect. 

3 Much of the language in Part 4 is adapted from a document published by the National 

Environmental Justice Advisory Council (NEJAC), entitled GUIDE ON CONSULTATION AND 

COLLABORATION WITH INDIAN TRIBAL GOVERNMENTS AND THE PUBLIC PARTICIPATION OF 

INDIGENOUS GROUPS AND TRIBAL MEMBERS IN ENVIRONMENTAL DECISION MAKING (Nov. 

2000), (hereinafter NEJAC Guide)available for download on the website of the EPA Office of 

Environmental Justice, at www.epa.gov/compliance/environmentaljustice/index.html. (Click on 

NEJAC, then Subcommittees, then Indigenous Peoples.) The final sentence (calling for telling a 

tribe if its recommendations have not be accepted) is adapted from the BIA “Government-toGovernment Consultation Policy (Dec. 13, 2000), adopted pursuant to Executive Order 13175, 

Consultation and Coordination with Indian Tribal Governments (Nov. 6, 2000). This final 

sentence states a point that was raised by several tribal representatives in the meetings we have 

had working on this Consultation Plan. 

The main reason for drawing on the NEJAC Guide rather than the BIA policy is that the focus of 

the BIA policy is generally not appropriate for this Consultation Plan, in that the BIA Policy is 

designed to facilitate consultation with tribes on major policy issues, issues that may be addressed 

through rule-making and/or legislation. In the context of this Consultation Plan, we are more 

concerned with ensuring that federal agencies act in accordance with existing laws and 

regulations. 

4 The draft language assumes that an HPP has been developed, although that is not the case as of 

the date of this draft. This Consultation Plan is intended to become a chapter in the HPP. Some 

revisions in the wording of this paragraph may become necessary for consistency with the format 
43

 

HPP when it is developed. In addition, if other parties become signatories to a revised PA, it may 

be appropriate to include references to such agencies and their roles at this point. Agencies that 

may become signatories to a revised PA include BIA, Western Area Power Administration, and 

Lake Mead National Recreation Area. 

5 The statements of principles in this part are based mostly on the NEJAC Guide (the “Guiding 

Principles” of consultation). The second principle was added in response to the discussion in the 

August 7-8, 2002, meeting. Although this overlaps somewhat with the principle about 

establishing training programs, it is sufficiently different to be stated separately. 

6 This addendum has not yet been written. Tribal representatives generally think that the 

information provided in this addendum can be limited to: the name, institutional affiliation, and 

contact information for an individual and an alternate to serve as the primary contact for each 

tribe for purposes of this Consultation Plan; plus the name, title, and contact information for the 

official of each Tribe who serves as the head of the Executive Branch of the Tribe’s government 

(or who performs such functions if the Tribe does not operate with a separation of executive and 

legislative powers). 

There has been some discussion in the meetings of tribal representatives about the option of 

providing more information on each tribe, perhaps information on the tribe’s land base, 

population, form of government, and whatever else the tribe wants included, such as a general 

statement about the importance of Grand Canyon to the tribe. The final EIS, at pp. 141 – 146, 

provides summaries of the importance of the Grand Canyon to the tribes (treating the Southern 

Paiutes as a single tribe). Another option would be to provide citations to published reference 

works. 

7

 The frequency of meetings set out in this section is based on the views of tribal representatives, 

reflecting their judgment of how to make consultation effective without becoming too 

burdensome. The frequency of meetings is not mandated by law or regulations. By establishing 

effective on-going relationships, however, the necessity for meetings to deal with specific 

compliance requirements (i.e., the Part 9 protocols) may be reduced. 

The representative of the Bureau of Reclamation has expressed willingness to accept the 

arrangements set out in this section, noting, of course, that she does not speak for the other 

agencies. 

8 It is intended that this Consultation Plan will be adopted as a chapter in the HPP. Other chapters 

of the HPP (particularly the chapter dealing with treatment and monitoring of known sites and 

resources) will include provisions that will alleviate the need to follow the steps set out in this 

section. As the other parts of the HPP are developed, some revisions in wording may become 

necessary at this point in the Consultation Plan. 

9 Time frames will vary depending on the nature of the proposed action. If consultation has been 

effective under Part 8, and if the HPP is in fact developed and implemented, the number of 

proposed actions subject to this protocol may be relatively small. In any case, federal agencies 

should be aware that, if the proposed action would adversely affect one or more historic 

properties, 60 days is not likely to be sufficient to resolve the adverse effects; if there are no 

adverse effects, however, it may be long enough to conclude the section 106 process. 

10 Under the ACHP regulations, if the undertaking would affect reservation lands, the THPO is 
44

 

the required party and the federal agency decides, in consultation with the THPO, which other 

parties should be included. §800.3(f)(3); see also §800.2(c)(A). If the undertaking only affects 

places outside reservation boundaries, each Tribe has a right to be a consulting party (which the 

Federal agency cannot deny), §800.3(f)(2); each Tribe may be an invited signatory to an MOA, 

with the same rights as the required signatories, but the decision whether to invite such a Tribe is 

up to the Federal agency official, §800.6(c)(2). 

The language in protocol (c-4) and corresponding language in (c-5) call for the THPO and SHPO 

to have essentially the same role in the process for lands for which the reservation status is 

subject to dispute. 

11 This subsection of the Protocols seeks to conform to the requirements of the statute and the 

regulation issued by the National Park Service. 43 C.F.R. part 10. 

12 Notice by phone is required by the regulations. This means that every authorized AMP or 

PA/HPP group in the River Corridor will need a radio phone, and the group leader must know of 

the requirement to use it in the event of an inadvertent discovery. 

13 This is a point at which it will likely be more expeditious to rely on NPS to provide notice to 

the tribes rather than have the leader of the group making the discovery be responsible for 

determine where the discovery is with respect to disputed boundary lines. If the discovery is, in 

fact, within the boundaries of a Reservation, the tribe on whose reservation the site is located is 

not obligated to provide notice to other tribes. Rather, NAGPRA provides that, for human 

remains and cultural items found on “tribal lands,” the tribe has rights of ownership or control 

(unless, with respect to human remains and associated funerary objects, there are known lineal 

descendants). 25 U.S.C. §3002(a)(2)(A). Since the tribe on whose tribal lands the discovery is 

made has the right to take custody, such a tribe also has the discretion to transfer custody to a 

different tribe in the event that the latter tribe is culturally affiliated with the items and the tribe 

within whose reservation the discovery was made is not culturally affiliated. This is entirely 

within the discretion of the tribe on whose tribal lands the discovery was made, and the tribe is 

under no legal obligation to give notice to any tribe(s) that may be culturally affiliated. Under the 

language in protocol (d-1), NPS will assume the burden of providing notice to potentially 

culturally affiliated tribes. If the discovery is undisputedly within a reservation, a tribe with a 

claim of cultural affiliation can ask the tribe on whose reservation the discovery is made to 

exercise discretion and allow the tribe making the claim to take custody. 

In the event that human remains are discovered in a place with respect to which there is a 

disagreement on whether it is reservation land or NPS land, a tribe with a claim of cultural 

affiliation (i.e., other than the tribe whose reservation boundary is at issue) may have a legal right 

to take custody if the land is determined to be federal land. (Whether such a claim amounts to a 

legal right would, of course, depend on NPS determining that such a tribe’s claim of cultural 

affiliation is stronger than any other tribe’s claim.) In such a case, the tribes may be able to 

resolve the disposition of the items covered by NAGPRA without resolving the underlying issue 

of the reservation boundary, or they may determine that the boundary issue must be resolved 

before the NAGPRA issue can be resolved. Protocol (d-1) acknowledges the possibility of such a 

case arising and ensures notice to tribes with a stake in the outcome. It does not attempt to 

resolve the underlying boundary issue. 

14 This language is adapted from the regulations. 43 C.F.R. §10.4(c). In meetings of tribal 

representatives, there has been some discussion of the possibility of providing some guidance on 
45

 

what steps would be considered “a reasonable effort” to protect the discovered items, but at this 

point no such guidance is provided. 

15 The NAGPRA regulations require a determination of cultural affiliation as part of the plan of 

action that concludes consultation. 10.4(c)(2) (intentional excavations); 10.5(e)(2) 

(inadvertent discoveries). NAGPRA requires that consultation with tribes take place 

prior to excavation of human remains and/or cultural items on federal lands, 25 U.S.C. 

§3002(c)(2), a requirement incorporated into the regulations at 43 C.F.R. §10.3(b)(4). 

(This requirement applies whether the excavation/removal begins as an intentional 

project or an inadvertent discovery, because, in the case of an inadvertent discovery, if 

the decision is made by the federal official that the human remains and/or cultural items 

will be excavated or removed, the requirements for intentional excavations apply. 43 

C.F.R. §10.4(d)(1)(v).) In addition to this legal requirement, it is important to determine 

cultural affiliation prior to excavation/removal so that the religious and cultural practices 

of the culturally affiliated tribe can be accommodated during excavation/removal. 

Notwithstanding the legal requirements, in some instances, a definitive determination of 

cultural affiliation may not be possible prior to excavation; similarly, excavation/removal 

may yield information that indicates that a determination of cultural affiliation made prior 

to excavation/removal may have been incorrect. This protocol does not propose a 

solution for such a situation. This issue may be subject to consultation under the 

protocols in part 8. 

16 The parties recognize the need to establish a process for measuring and tracking 

consultation, but they do not intend for the process to be unduly burdensome. The 

process is likely to change with experience.