identifying concerned tribes

[Dean Suagee <dsuagee@vermontlaw.edu>]

Several commenters have noted the need to seek involvement from various kinds of groups and individuals that make up the public, generally those in the vicinity of the area where a proposed action will cause environmental impacts.  At least one commenter mentioned efforts to contact local Native American groups.  

In many cases there are legal requirements to identify federally recognized tribes that should be invited to participate, because, for example, there may be impacts within a reservation or there may be impacts on off-reservation resources in which tribes have statutory or treaty rights.  In such cases, it's not usually very hard to determine which tribes ought to be contacted.  

In other cases, however, it may be considerably more difficult, particularly where tribes may have statutory rights to be consulted regarding actions that affect aboriginal lands that are located some distance from their present-day reservations.  Two important statutes that establish such rights are the Native American Graves Protection and Repatriation Act (NAGPRA) (which applies to federal lands and tribal lands) and the National Historic Preservation Act (NHPA) (which, like NEPA, is triggered by federal agency action or funding, regardless of the ownership status of the affected lands).

Let me briefly state some of the requirements of the NHPA (16 U.S.C. 470 et seq.), as implemented through regulations issued by the Advisory Council on Historic Preservation (36 C.F.R. part 800, revised Dec. 12, 2000, 65 Fed. Reg. 77698).  The right of tribes to participate in the section 106 consultation process is based on section 101(d)(6) of the Act (codified at 16 U.S.C. section 470a(d)(6). In its outreach efforts for sepcific actions that will result in environmental impacts, including permit decisions, EPA is legally obligated to determine whether the proposed action is an "undertaking" for purposes of the National Historic Preservation Act and, if so, whether the undertaking has the potential to cause effects on historic properties.  36 CFR section 800.3(a).  If the proposed action is such an undertaking, then EPA must make a "reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties."  Section 800.3(f)(2).  This is supposed to be done at the very outset of the NHPA section 106 consultation process. Tribes have a right to participate in the process of identifying places that are potentially eligible for the National Register of Historic Places and to contribute their views in making determinations of eligiblity.  Tribes also have the right to consult regarding effects of the proposed undertaking on any such National Register eligible property and the adequacy of proposed measures to avoid or mitigate adverse impacts.

Some places that are eligible for the National Register include places commonly referred to as archaeological sites, some of which may include human burials.  Such places may not be known to exist until construction activity cause some disturbance; or there may be indications that such sites exist but there is no need (and no funding) to do any excavation until there is a threat. Some such places may be eligible for the National Register, and may also hold religious and cultural significance for a tribe.  (If there are burials, and they are culturally affiliated with a modern tribe, the tribe will almost always regard the site as holding religous significance.)

In addition, there is a category of historic property commonly known as a "traditional cultural property" (TCP) which is eligible for the National Register on one or more of the standard criteria but which also has ongoing importance in the cultural life of a living community, such as an Indian tribe.  Many TCPs are relatively undisturbed natural areas that are important in tribal religious practices.  E.g., certain sand bars in the Rio Grande have been determined to be eligible for the National Register, as have the tops of many mountains.  Generally there is no need to go through the process of determining eligibity for the National Register until there is some kind of threat.  Even then, many tribes are very reluctant to document their cultural and religious practices.

In any case in which an EPA action has the potential to affect National Register eligible properties, EPA has a duty under the statute and regulations to seek out potentially concerned tribes and consult with them, involving them in the relevant determinations in the section 106 process.  

In addition, under the statute and regulations, an action "subject to State or local regulation administered pursuant to a delegation or approval by a Federal agency" may be an "undertaking" for puroses of the NHPA. Section 800.16(y).  This raises another set of issues regarding such actions as NPDES permits issued by states -- what are EPA's NHPA responsibilities for such permits? What are the states' responsibilities?

I raise these issues because I'm afraid they will tend to be ignored.  In many cases there will not be easy practical answers. One of my friends who works for a tribe that was removed from the southeast to Oklahoma tells me that he receives a lot of notices of proposed actions from a variety of agencies -- what he receives in the way of notices far exceeds the Tribe's capacity to respond.  So just identifying potentially concerned tribes and sending written notices does not seem to be an effective way of actually achieving meaningful consultation.  On the other hand, I suspect that federal agency staff in regions such as the southeast, from which many tribes were removed to Oklahoma, probably feel overwhelmed by the effort of trying to identify the tribes that they are obligated to invite to consult.

The Department of the Interior and the Advisory Council on Historic Preservation have launched a project to develop a data base for use in identifying tribes and engaging in consultation, and I strongly recommend that EPA investigate this project and become involved in it.