The ACHP understands that applicant-driven projects create challenges for federal agencies and Indian Tribes in Section 106 consultation because extensive planning typically occurs prior to the submission of an application and the initiation of the review process. When project siting and planning takes place in advance of the Section 106 process, neither federal agencies nor Indian Tribes have many options to seek modifications to the project location or siting that may avoid impacts to historic properties.
To address these challenges, the ACHP believes it is essential that applicants include Indian Tribes in project planning and the information gathering that takes place in advance of submitting an application for federal approval or funding. Such coordination can lead to avoidance of impacts to places of religious and cultural significance to Indian Tribes, before the applicant decides on the project location and footprint.
Therefore, with assistance from a Tribal working group, federal and state agencies, and energy producers and trade organizations, the ACHP recently published Early Coordination with Indian Tribes During Pre-application Processes: A Handbook. It provides background information on the Section 106 process for applicant-driven projects and offers suggestions for federal agencies, industry, and Indian Tribes to work collaboratively and effectively in pre-application planning. The document includes best practices from an Indian Tribe, an energy company, and a state transportation agency. (text only version)
The ACHP also launched an online, on-demand eLearning course in July, 2019, Early Coordination with Indian Tribes for Infrastructure Projects. The course will help federal agencies and applicants develop skills for interacting and working with Indian Tribes early in project planning.
Even when an applicant has successfully coordinated and worked with Indian Tribes in preparing project documentation for an application for federal approval or funding, the federal agency is still required to consult with Indian Tribes in the Section 106 review process. However, such consultation would likely be fairly straightforward.
Federal agency consultation regarding infrastructure projects
Federal agencies have been exploring ways to improve federal agency consultation with Indian Tribes for infrastructure projects for several years and have issued reports outlining challenges and proposed actions.
The most recent is the U.S. Government Accountability Office (GAO) report, Tribal Consultation: Additional Federal Actions Needed For Infrastructure Projects, released in April 2019.
Based on interviews with officials from 57 tribes and 21 federal agencies, as well as comments submitted by 100 tribes in 2016 on Tribal consultation for infrastructure projects, GAO identified key factors that Tribes and agencies believe hinder effective consultation on infrastructure projects. GAO recommendations included developing a government-wide system to identify and notify Tribes of consultations.
Improving Tribal Consultation in Infrastructure Projects is the ACHP’s report, issued in May 2017, in response to the Section 106 issues raised in interagency meetings with Indian Tribes in 2016 to discuss improving Tribal involvement in infrastructure projects.
In the fall of 2016, federal agencies consulted with Indian Tribes regarding Tribal input in federal infrastructure decisions. Many Tribal commenters at these meetings remarked that Section 106 consultation is often started too late, after project plans with site locations and alignments have been nearly completed, and that Section 106 is not conducted as a process separate from the National Environmental Policy Act (NEPA) review process. According to Tribal commenters, this leads to adversarial relationships between Indian Tribes and federal agencies and/or the project proponent and positions Indian Tribes as obstacles rather than partners.
Tribal commenters suggested that Indian Tribes be involved in the pre-licensing/permitting phase to ensure that cultural and religious sites are properly identified and protected. One commenter referred to this as an “early intervention process.” Tribal commenters also repeatedly suggested that federal agencies start the Section 106 process earlier for infrastructure projects, before decisions are made and historic properties are identified.
The Departments of the Interior and Justice and the Army released a report in January 2017 in response to the interagency consultations. In the report, Improving Tribal Consultation and Tribal Coordination in Federal Infrastructure Decisions (January 2017), it is recommended that:
1. Each Federal agency involved in infrastructure decision-making should use mechanisms to involve Tribes early in project planning whenever possible. This should include developing procedures that facilitate permit applicants and Tribes working together before applicants make siting decisions or other commitments that impede consideration of alternatives. Federal agencies should use programmatic, landscape-level planning mechanisms to ensure thoughtful and meaningful consultation on infrastructure projects.
2. Each Federal agency involved in infrastructure decision-making should develop and implement procedures for consulting with and including Tribes as early as possible in the NEPA and NHPA processes, including pre-decisional scoping discussions with Tribes.
Download the meeting transcripts and comments for the report, Improving Tribal Consultation and Tribal Coordination in Federal Infrastructure Decisions (January 2017).