On March 20, 2019 the U.S. Government Accountability Office (GAO) published the report Tribal Consultation: Additional Federal Actions Needed For Infrastructure Projects and publicly released the report on April 19, 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.

Federal agencies are required, at times, to consult with tribes on infrastructure projects like pipelines that may harm tribal natural and cultural resources.

According to tribal and agency officials, there are several factors making these consultations less effective. For example:

  • Some tribal representatives held the view that agencies did not consider their input and that consultations started too late.
  • Agencies reported difficulty obtaining the contact information needed to start consulting and other challenges.

GAO recommendations included developing a government-wide system to identify and notify tribes of consultations.

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In May 2017, the Advisory Council on Historic Preservation (ACHP) released its report in response to the Section 106 issues raised in the interagency consultations. In the ACHP’s report, Improving Tribal Consultation in Infrastructure Projects, it is recommended that:

1. Federal agencies improve pre-application information about Section 106 and tribal consultation, and

2. Federal agencies encourage proactive planning by applicants that includes coordination with and information gathering from Indian tribes.

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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 Corps of Engineers 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.

 

You can download the meeting transcripts and comments for the report, Improving Tribal Consultation and Tribal Coordination in Federal Infrastructure Decisions (January 2017).

 

OTHER TRIBAL CONSULTATION RESOURCES

Follow Other Tribal Consultation Resources for additional federal and private organization links that may be of assistance for tribal consultation.