Both NHPA and NEPA require federal agencies to consult with Tribes concerning potential impacts to the natural and cultural environment. The National Park Service has gone so far as to provide agencies with a NEPA/NHPA Handbook, which discusses in detail how the two federal laws (are supposed to) work together. King's informative Cultural Resource Laws and Practice includes detail about what the laws say, how they should be followed and the ironic reality of they are followed (or mis-followed). There are many problems described by King when he first wrote his first version in 2008. Yet, we still see those problems occurring today. I won't go into the gory details, as King has covered them well in his book. However, out of all the problems he has pointed out, there is one set that stands out the most, which is Tribal consultation. For those of us who remember Graduate school, we remember walking through both NHPA and NEPA, however, details were never provided with much clarity on when, how and why Tribes were consulted pursuant to Federal law, other than that it was eventually required. But what does that look like on the ground? If it is cut and dry, then why are the same mistakes being made? What are holes in the education process being missed to adequately train future cultural resource managers? What are ways we can better train future generations? Below are three common mistakes seen with the implementation of Tribal consultation pursuant to NHPA and NEPA provided in no order:
1) Ignorance of Tribal Law as it pertains to NHPA and NEPA? First, let’s be clear, aside from NAGPRA and AIRFA, cultural resource laws (including NEPA, yes NEPA is a cultural resource law) were primarily made without Tribal input, without thoughts of benefitting Tribal communities or their perspectives on their resource values (although amendments in favor of economically challenged communities were added later). Cultural resource laws were made despite, not for Natives. With that in mind, let’s remember that the added plundering of Native graves and sacred sites conducted from the 19th century on, has been legally justified by cultural resource laws beginning in 1906 with the passage of the Antiquities Act. The Antiquities Act initiated the Nation’s first process for enforcement of looting and vandalism, but it also professionalized archaeology and created a huge barrier to entry for Tribal members from managing their own resources according to their own laws and customs. This reality exists even today with the Archaeological Resources Protection Act which stipulates that sacred sites significant to Tribes should be considered yet is ignored when ARPA permits are issued that directly removes tribally-sacred artifacts and places them in repositories for eternity to collect dust. Moreover, agencies claim that reburial is not possible under ARPA and further ignore tribal cultural values regarding the care of potentially sacred objects. This only feels like more of a violation in the face of Executive Order 13007 and AIRFA, two laws requiring the protection of sacred and religious sites on federal land, when federal agencies allow ARPA law to supersede their Trust Responsibility to protect resources significant to the Tribe.
The entire purpose of Section 106 of the NHPA is to require that Federal Agencies consider their impact to historic properties listed or eligible for the National Register of Historic Places and provide the Advisory Council on Historic Preservation (ACHP) the opportunity to comment. The ACHP comments on a relatively small sample. King estimated that out of 250,000 NHPA related projects in a year, the ACHP commented on about 75, half of which were tribal-related requests.
In 1992, NHPA was amended in terms of how it was carried out by federal agencies. These were very important amendments as they (finally) recognized that "properties of traditional religious and cultural importance to an Indian tribe of Native Hawaiian organization may be determined to be eligible for inclusion on the National Register." Furthermore, federal agencies "[i]n carrying out its responsibilities under Section 106," they shall "consult with any Indian tribe or Native Hawaiian organization that attached religious and cultural significance to properties. The amendments also included the provision to have a Native American or Native Hawaiian appointed to the ACHP. So, after 26 years since the amendments were created, an executive order (Ex. Order 13007) concerning Native sacred site inventory and protection on Federal Lands was passed, and several memos were published by the ACHP regarding NHPA and other federal Indian law coordination, why is Tribal consultation such a dilemma for federal agencies?
One observation, that I’ve made, is that federal cultural resource managers, generally, understand NHPA and NEPA but have never had any exposure to Tribal law, ever. So, one wonders, how firm of a grasp does someone have on NEPA and NHPA if they don’t understand Tribal consultation? This constitutes a huge problem, as tribes have very specific understandings about their sovereignty and their rights to resources regulated by NHPA and NEPA. Many tribes view NHPA and NEPA as subordinate laws in comparison to specific Treaty, Case, and Constitutional Law. For instance, the three Supreme Court Marshall Rulings, or Marshall Trilogy, are the foundation of Indian Law, but so few federal agencies are even aware of their existence or how they relate to NHPA and NEPA. The Marshall Trilogy established that 1) Tribes have rights that can only be extinguished by the Federal Government, 2) Tribes are sovereign, domestic dependent Nations within a Nation and that the Federal government has a “trust responsibility” to protect their land and resources and 3) tribes have inherent sovereignty with the ability to make and enforce their own laws within their lands. Based upon the Marshall Trilogy, Tribes understand that 1) Tribes have a sovereign right to their resources 2) the federal government has a trust responsibility to protect those resources and 3) tribes can create and enforce laws over their resources within their respective lands. These rights supersede NEPA and NHPA, especially if supported by Treaty. Treaties are considered the Supreme Law of the Land pursuant to Article 6 of U.S. Constitution referred to as the “Supremacy Clause”. Further, Treaty Tribes go so far as to exercise co-management authority over their resources off-reservation, with a small amount exercising enforcement authority over its own tribal membership off-reservation related to resource harvest. Although it has not been adjudicated, it is assumed that this extra-territorial jurisdiction authority extends to all cultural and natural resources; an assumption that the Supreme Court would no doubt support.
2) Consultation Frequency: King outlines well that NEPA is flexible as to when Federal Agencies shall consult with Tribes, but only exercise consultation when it absolutely must. In most cases, Tribes are brought in during the scoping process during the initialization of an Environmental Impact Statement (EIS). At that point, the agency, already went through an internal Environmental Assessment (EA) to determine if the project would or would not impact resources, that are usually significant to Tribes. And since they are in the EIS process, required when a proposed project would undoubtedly impact cultural and natural resources, this leaves Tribal staff wondering “who thought this proposed project was a good idea and why are we only hearing about this now?” The most common response I hear from the Tribal side is “We want to be consulted earlier in the process” but this rarely ever happens, either strategically or accidentally. Going back to the Marshall Trilogy, Tribe’s feel they have a right to be consulted with before the time it is required by NEPA or NHPA and that some undertakings are a direct violation of their rights outlined in the Marshall Trilogy and respective Treaties, Executive Orders or Articles of Federal Recognition.
3) Meaningful consultation: Neither NHPA nor NEPA clearly define consultation, when it happens, what it is or with whom it occurs. Sure, Tribes are supposed to be consulted, but with whom in a Tribe is consultation initiated? Does the janitor at a tribe work? Is a phone call good enough? As mentioned above, NEPA requires Tribal consultation at the EIS level, but there’s nothing to say that Tribes can’t be initiated earlier in the process. Some agencies still feel that a single page letter constitutes meaningful tribal consultation while others hold monthly meetings to discuss agency actions pursuant to Section 106. More and more tribes are beginning to self-define what constitutes “consultation” and “government to government consultation”. Self-defining is an exercise in Tribal sovereignty and should be supported by Federal agencies when it occurs as one way of fulfilling that “Trust Responsibility” outlined in the Marshall Trilogy. Consultation can take many forms depending upon the nature of the project. When questioning what constitutes meaningful tribal consultation, try asking a tribe how they define the term. Remember, each tribe defines it differently. That is their sovereign right to do so.
Conclusion: It's not a big mystery at this point that Native Americans are leery of archaeologists. The impact to burial grounds and sacred sites has been traumatic, but the legal justification to carry these actions out has made it all the worse for tribes to actually trust archaeologists. But when do we set that aside, move past the discomfort and do the job set before us? When will Federal Agencies recognize that when it comes to protecting resource significant to Tribes, there isn't a choice, it truly is a Trust Responsibility? Perhaps, it is as our elder states "sovereignty is a living thing" and it is going to take educating, or should I say re-educating, Federal cultural resource managers on how three 1830s-era Supreme Court decisions related to management of archaeological sites. That is if cultural resource managers actually want to make that distinction. It might not hurt, because Tribes already do and are just waiting for others to catch up.