On April 19, 2019, the Government Accountability Office (GAO) released a report titled “Tribal Consultation: Additional Federal Actions Needed for Infrastructure Projects (GAO-19-22).” The report examines key factors Indian tribes and select federal agencies identified that hinder effective consultation on impacts to natural and cultural resources on infrastructure projects and makes recommendations for improvements. Click here to view the report.

GAO was asked to review federal agency procedures for consulting tribes on infrastructure projects in the wake of widespread concern about the Dakota Access Pipeline and efforts by the Departments of the Interior and Justice, as well as the Army Corps of Engineers (Corps) in 2016 to examine whether nationwide reform to how federal agencies consider the view of tribes on infrastructure projects was necessary. GAO examined laws, regulations, and policies and interviewed officials from 21 federal agencies that are generally members of the Federal Permitting Improvement Steering Council (FPISC), including the Advisory Council on Historic Preservation (ACHP). GAO also summarized comments that 100 tribes submitted to federal agencies in 2016 to provide input on tribal consultation for infrastructure projects and interviewed available officials from 57 tribes and eight tribal organizations. 

GAO found a number of factors that inhibit effective tribal consultation, including the following:

  • Agencies initiating consultation too late
  • Agencies not adequately considering tribal input when making decisions
  • Agencies not respecting tribal sovereignty and the government-to-government relationship between tribes and federal agencies
  • Challenges among agencies in obtaining and maintaining contact information for tribes
  • Agency resource constraints in supporting effective consultation, and
  • Coordination difficulties when multiple federal agencies are involved in a project

The report makes one recommendation for congressional consideration and 22 separate recommendations to 17 individual agencies on actions they can take to improve tribal consultation. These can be summarized as follows:

  • Congress should consider taking legislative action to resolve the long-standing issues between the Corps and the ACHP over the Corps Regulatory Program’s procedures, known widely as “Appendix C,” for implementing Section 106 of the National Historic Preservation Act (NHPA).
  • 16 agencies should take steps to communicate with tribes how their input was considered, and consider adding a requirement to consistently do so in their tribal consultation policies.
  • The Environmental Protection Agency; Departments of Housing and Urban Development, Energy, and Homeland Security; and Fish and Wildlife Service should take steps to develop a documented policy or clarify existing policy to implement the statutory requirement to consult with Alaska Native Corporations on the same basis as Indian tribes under Executive Order 13175.
  • FPISC and its members should work collaboratively to develop a plan to establish a central information system for identifying and notifying tribes that includes (1) well-defined goals for the system, (2) specifies FPISC members’ roles and responsibilities for establishing and maintaining the system given existing statutory authority, and (3) identifies resources required for developing and maintaining the system. Further, FPISC and its members should work collaboratively to consider how they will communicate with and involve tribes to help maintain accurate tribal data in the system.

The ACHP is committed to working with federal agencies, Indian tribes, Alaska Native Corporations, and others in pursuing these and other improvements that would make tribal consultation pursuant to Section 106 of the NHPA on infrastructure and other projects more effective. As noted in GAO’s report, the ACHP has long held that the Corps’ use of its own regulation to carry out Section 106 reviews for projects it permits falls short of Section 106 requirements and has been committed to finding a solution that better aligns its procedures with the requirements of Section 106.

The ACHP also remains committed as a member of FPISC to support further development and adoption of a central information system for identifying and notifying tribes about infrastructure projects. Recent efforts in this regard have focused on further developing and expanding the use of the contact information system maintained by the Department of Housing and Urban Development to assist agencies advancing infrastructure projects. Many of the ACHP’s commitments in these regards and other recommended improvements were provided in 2017 through the ACHP’s own report on tribal consultation and infrastructure projects.