Native American Issues: Examples of Certain Federal Requirements That Apply to Cultural Resources and Factors That Impact Tribal Consultation
Released: 2020-02-26T00:00:00

Letter

Background

Federal agencies have varying roles in planning, approving, and implementing infrastructure projects, depending on their missions and authorities. Some federal agencies help fund or construct infrastructure projects, and others grant permits or licenses for activities on private or federal lands. Agencies that manage federal lands, such as the Bureau of Land Management, may construct infrastructure on lands they manage and must also approve projects on those lands.

The circumstances under which federal agencies may need to consult with tribes will vary based on the agencies’ responsibilities for infrastructure projects as well as an infrastructure project’s potential effects on tribes’ land, treaty rights, or other resources or interests.

Federal agencies are generally responsible for identifying relevant tribes that may be affected by proposed projects, notifying the tribes about the opportunity to consult, and then initiating consultation, as needed. One or more tribes located near or far from the proposed project site may have treaty rights within lands ceded in treaties or interests in lands with cultural or religious significance outside of lands ceded in treaties.

Additionally, the Federal Permitting Improvement Steering Council— which was created to make the process for federal approval for certain (large) infrastructure projects more efficient—has issued two annual reports that identified best practices for, among other things, consulting with tribes. These best practices include: training staff on trust and treaty rights; providing clear information on proposals in a consistent and timely manner; holding consultations on lands convenient to tribes when possible; compensating tribes for consultant-like advice; and working to build strong, ongoing dialogue between tribal authorities and agency decision makers, among others. In 2017, Executive Order 13807 directed agencies to implement the techniques and strategies identified by the steering council as best practices, as appropriate.

For purposes of this testimony, Native American cultural resources means Native American cultural items as defined by NAGPRA, archaeological resources that are remains of past activities by Native Americans, and historic properties to which Indian tribes attach cultural or religious significance.

Examples of Federal Laws and Regulations That Apply to Native American Cultural Resources

ARPA, NAGPRA, and section 106 of the NHPA are examples of federal laws that apply to Native American cultural resources. These laws and their implementing regulations contain many different provisions applicable to Native American cultural resources, including requirements for federal agencies to consult with Indian tribes in certain circumstances.

ARPA and NAGPRA, among other things, prohibit trafficking of certain archaeological resources and Native American cultural items, respectively. In August 2018, we reported on federal laws that address the export, theft, and trafficking of Native American cultural items and any challenges in proving violations of these laws. That report included a discussion of ARPA and NAGPRA.

In addition, we reported in August 2018 that ARPA and NAGPRA contain provisions prohibiting the removal of archaeological resources and Native American cultural items from certain lands unless certain conditions are met, including consultation with Indian tribes. Specifically, ARPA prohibits, among other things, the excavation or removal of archaeological resources from public or Indian lands without a permit from the federal agency with management authority over the land. If the federal agency determines that issuance of such a permit may result in harm to, or destruction of, any religious or cultural site, the agency must notify any Indian tribe which may consider the site as having religious or cultural importance and meet, upon request, with tribal officials to discuss their interests.

NAGPRA prohibits the intentional removal from, or excavation of, Native American cultural items from federal or tribal lands unless an ARPA permit has been issued and other requirements are met. Specifically, regulations implementing NAGPRA require federal agency officials to take reasonable steps to determine whether a planned activity on federal lands may result in the excavation of human remains or other cultural items. Officials are also required to consult with certain tribes, including any tribe on whose aboriginal lands the planned activity will occur, about the planned activity. After consultation, the federal agency official must complete and follow a written plan of action that includes, among other things, the planned treatment, care, and disposition of human remains and other cultural items recovered.

NAGPRA and its implementing regulations also include provisions regarding inadvertent discovery of Native American cultural items on federal and tribal lands. Specifically, the person making the discovery must notify the responsible federal agency or tribal official, stop any activity occurring in the area of the discovery, and make a reasonable effort to protect the human remains or other cultural item discovered. The NAGPRA regulations specify procedures for the agency and tribal officials to take after receiving a notification and when the activity that resulted in the inadvertent discovery can resume.

Section 106 of the NHPA

In March 2019, we reported that under section 106 of the NHPA and its implementing regulations, federal agencies are required to consult with Indian tribes when agency “undertakings” may affect historic properties— including those to which tribes attach religious or cultural significance— prior to the approval of the expenditure of federal funds or issuance of any licenses. The implementing regulations require agencies to consult with Indian tribes for undertakings that occur on or affect historic properties on tribal lands or may affect historic properties to which Indian tribes attach religious or cultural significance, regardless of where the historic properties are located. In addition, these regulations establish the following four-step review process for federal agencies, with tribal consultation required for each step: (1) initiating the section 106 process, (2) identifying historic properties, (3) assessing adverse effects, and (4) resolving adverse effects.

Examples of Factors Tribes and Selected Agencies Identified That Impact the Effectiveness of Federal Agencies’ Consultation Efforts

As we found in March 2019, tribes and selected federal agencies identified a number of factors that hinder effective consultation on infrastructure projects, based on our review of the comments submitted by 100 tribes to federal agencies in 2016 on tribal consultation and our interviews with officials from 57 tribes and 21 federal agencies.

Tribes identified a variety of factors that hinder effective consultation. For the purposes of this testimony, we are highlighting those factors that more than 60 percent of the 100 tribes identified as concerns. For example:

Agencies’ timing of consultation. Sixty-seven percent of tribes that provided comments to federal agencies in 2016 identified concerns with agencies initiating consultation late in project development stages; according to one tribal official we interviewed, late initiation of consultation limits opportunities for tribes to identify tribal resources near proposed project sites and influence project design.

Agency consideration of tribal input. Agencies often do not adequately consider the tribal input they collect during tribal consultation when making decisions about proposed infrastructure projects, according to 62 percent of tribes that provided comments to federal agencies in 2016. Tribes’ comments included perceptions that agencies consult to “check a box” for procedural requirements rather than to inform agency decisions.

Agency respect for tribal sovereignty or the government-to- government relationship. Other concerns were related to agencies’ level of respect for (1) tribal sovereignty or (2) the government-to- government relationship between the United States and federally recognized tribes, according to 73 percent of tribes that provided comments to federal agencies in 2016. Comments included concerns that some agency practices are inconsistent with this relationship. For example, tribes cited agencies limiting consultation to tribal participation in general public meetings and sending staff without decision-making authority to represent the U.S. government in consultation meetings.

Agency accountability. Sixty-one percent of tribes that provided comments to federal agencies in 2016 raised concerns related to the extent of agencies’ accountability for tribal consultation, stating that some agencies or officials are not held accountable for consulting ineffectively or for not consulting with relevant tribes. For example, comments included concerns that tribes may not have appeal options short of litigation when they believe that federal officials did not adhere to consultation requirements.

In addition, officials from 21 federal agencies included in our March 2019 report identified factors that they had experienced that limit effective consultation for infrastructure projects. For the purposes of this testimony, we are highlighting those factors that more than 60 percent of the 21 agencies identified as concerns. For example:

Maintaining tribal contact information. Officials from 14 of 21 agencies (67 percent) cited difficulties obtaining and maintaining accurate contact information for tribes, which is needed to notify tribes of consultation opportunities. For example, ongoing changes or turnover in tribal leadership make it difficult to maintain updated tribal information, according to some agency officials we interviewed.

Agency resources to support consultation. Officials from 13 of 21 agencies (62 percent) cited constraints on agency staff, financial resources, or both to support consultation. Officials from these agencies said that they have limited funding to support consultation activities, such as funding for their staff to travel to in-person consultation meetings for infrastructure projects.

Agency workload. Officials from 13 of 21 agencies (62 percent) identified a demanding workload for consultation as a constraint, because of large numbers of tribes involved in consultation for a single project, high volumes of consultations, or lengthy consultations, among other reasons. Officials from some of these agencies said that it may be difficult to stay on project schedules when there are multiple tribes to consult with or multiple agencies involved.

In March 2019, we also found that the 21 agencies in our review had taken some steps to facilitate tribal consultation, but the extent to which these steps had been taken varied by agency. For example:

Developing information systems to help contact affected tribes.

Eighteen agencies developed systems to help notify tribes of consultation opportunities, which generally include contact information for tribal leaders or other tribal officials. Three of these agencies also included information on tribes’ geographic areas of interest. For example, the Department of Housing and Urban Development developed a system that aims to identify over 500 tribes’ geographic areas of interest and includes their contact information. The Federal Permitting Improvement Steering Council identified developing a central federal database for tribal points of contact as a best practice. We recommended that the council should develop a plan to implement such a database and consider how it will involve tribes to help maintain the information, among other actions.

Developing policies to communicate how they considered tribal input. Five agencies’ tribal consultation policies specify that agencies are to communicate with tribes on how tribal input was considered. For example, the Environmental Protection Agency’s policy directs the most senior agency official involved in a consultation to send a formal, written communication to the tribe to explain how the agency considered tribal input in its final decision. However, 16 agencies did not call for such communications in their policies. We recommended that these agencies update their tribal consultation policies to better communicate how tribal input was considered in agency decision- making.

Addressing capacity gaps through training. Most of the 21 selected federal agencies have taken steps to facilitate tribal consultation for infrastructure projects by providing a range of training opportunities for staff involved in tribal consultation to help build agency officials’ knowledge of tribal consultation topics. For example, the U.S. Army Corps of Engineers coordinates an immersive, 4-day training, hosted by a tribe on the tribe’s land or reservation for agency staff and other participating agency officials, which focuses on cultural competency important for tribal consultation.

Utilizing various approaches to address resource constraints. Some of the selected federal agencies used various approaches to help address resource constraints agencies and tribes may face when consulting on infrastructure projects, according to agency officials. For example, the Bureau of Land Management’s policies state that the agency may use its appropriated funds and designated accounts to reimburse tribal members’ travel expenses to attend meetings in connection with some consultations. The Nuclear Regulatory Commission collects fees from project applicants to cover agency costs related to consultation.

In conclusion, effective consultation is a key tenet of the government-to- government relationship the United States has with Indian tribes, which is based on tribal sovereignty. Failure to consult, or to consult effectively, sows mistrust; risks exposing the United States to costly litigation; and may result in irrevocable damage to Native American cultural resources. In our March 2019 report, we made recommendations to 17 agencies to take steps to improve their tribal consultation practices, which agencies generally agreed with and in one case, have implemented. However, sustained congressional attention to these issues and the relevant factors impacting the effectiveness of agencies’ consultation efforts may help to minimize the negative impacts on tribes’ cultural resources, when relevant federal laws and regulations apply.

Chairman Gallego, Ranking Member Cook, and Members of the Subcommittee, this completes my prepared statement. I would be pleased to respond to any questions that you may have at this time.

GAO Contacts and Staff Acknowledgments

For further information regarding this testimony, please contact Anna Maria Ortiz at (202) 512-3841 or ortiza@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement.

Key contributors to this statement include Lisa Van Arsdale (Assistant Director), Brad Dobbins, Leslie Kaas Pollock, and Jeanette Soares.

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