Tribal Consultation: Additional Federal Actions Needed For Infrastructure Projects GAO Report

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.

Guidance on Assistance to Consulting Parties in the Section 106 Review Process


Consultation is the heart of the Section 106 process. Federal agencies are required to identify and engage a variety of consulting parties during the steps they follow to meet their legal obligations. Principal among these consulting parties are State Historic Preservation Officers (SHPOs) and Tribal Historic Preservation Officers (THPOs). Federal agencies also have special consultation responsibilities with respect to Indian tribes and Native Hawaiian organizations (NHOs).

Tribal Coordination and Consultation For Infrastructure Projects

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.

Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions January 2017

On September 23, 2016, the Department of the Interior, Department of Justice, and the Department of the Army issued a joint letter to Tribal Leaders committing to a broad review and consultation with Tribes on how Federal decision making on infrastructure and related projects can better allow for timely and meaningful Tribal input. This Report, Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions, is the product of this government-to-government consultation and comments received from fifty-nine Tribes (and eight organizations representing Tribal interests) in October and November 2016. It reflects the start of a continuing nation-to-nation consultation that is needed to ensure that infrastructure projects are sited in a manner that lives up to the United States’ obligations to Tribes.

Role of the Tribal Historic Preservation Officer in the Section 106 Process

The 1992 amendments to the National Historic Preservation Act (NHPA) included provisions for Indian tribes to assume the responsibilities of the State Historic Preservation Officer (SHPO) on tribal lands, and establish the position of a Tribal Historic Preservation Officer (THPO).1 The regulations implementing Section 106 of the NHPA use the term “THPO” to mean the Tribal Historic Preservation Officer under Section 101(d)(2) of the NHPA.

Limitations on the Delegation of Authority by Federal Agencies to Initiate Tribal Consultation under Section 106 of the National Historic Preservation Act

A federal agency is allowed, in some circumstances, to delegate to its applicants the responsibility to initiate consultation pursuant to the regulations that implement Section 106 of the National Historic Preservation Act (NHPA), “Protection of Historic Properties” (36 CFR Part 800). The provision in Section 800.2(c)(4) of the regulations has been used frequently by federal agencies such as the Federal Communications Commission, the Surface Transportation Board, and the Department of Health and Human Services.

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