Tribal Consultation and Consulting with NHOs

FHWA must make a reasonable and good faith effort to identify Tribes to be consulted during the Section 106 process. Tribes may be residents of the state where a project is located, but in many cases, especially in midwestern and eastern states, Tribes will be located outside the state. Further, no Tribe that identifies itself as being interested in historic properties that may be affected by a project can be denied consulting party status for that project.

FHWA consults with Tribes on historic properties of religious and cultural significance that may be affected by a project. Both Tribes and historic preservation professionals will often refer to these properties of religious and cultural significance as Traditional Cultural Properties (TCPs). It should be noted that the term TCP does not exist in law or regulation. For a property of religious and cultural significance to be eligible for listing in the National Register, it must meet one or more criteria for inclusion in the National Register and retain sufficient integrity to convey its significance, the same as other types of historic properties. It should be noted that information provided regarding such properties may pertain to use of a traditional religious site and therefore should be withheld from public disclosure pursuant to the confidentiality provisions of the NHPA and its implementing regulations. The ACHP has more guidance on Section 304.

And as stated in the Section 106 regulations, Tribes possess special expertise in assessing the National Register eligibility of historic properties that may possess religious and cultural significance to them.

Tribal consultation should begin at the earliest stages of project planning, and FHWA must ensure that Tribes are provided a reasonable opportunity to identify their concerns about historic properties of religious and cultural significance, including:

  • Advising the agency on the identification and evaluation of these properties.
  • Providing their views on a project’s effects on these properties.
  • Participating in the resolution of any adverse effects on these properties.

It is also important for FHWA to consult early with Tribes on how to address issues of cultural sensitivity and confidentiality concerning properties of religious and cultural significance that may be present within or near a project area. Tribes may be reluctant to divulge information about the location, nature, and activities associated with these properties.

Consultation On and Off Tribal Lands

There are differences in how FHWA consults with Tribes for project impacts on and off tribal lands. The following highlights these differences.

On tribal lands:

  • Consult with the THPO or, if no THPO, the designated tribal representative and SHPO.
  • The Tribe must concur with FHWA’s Section 106 findings.
  • The Tribe is a signatory to Section 106 agreements.

Off tribal lands:

  • Consult with the Tribe (THPO or designated tribal representative) and SHPO.
  • The views of the Tribe must be considered when FHWA makes a Section 106 finding or decision.
  • The Tribe should be invited to sign or concur with a Section 106 agreement.

Role of State DOTs in Tribal Consultation

State DOTs often assist FHWA DOs in tribal consultation. Many State DOTs have established, long-term relationships with both resident and non-resident Tribes, and have fully identified which Tribes need to be consulted for a project in the state. The extent and role of a State DOT during tribal consultation should, however, be established in consultation among FHWA, Tribes, and the State DOT. Often, a State DOT’s role and responsibilities are explicitly noted in the tribal consultation sections of a State DOT Delegation PA. Regardless of the role and responsibilities of a State DOT during tribal consultation, FHWA retains the legal responsibility for government-to-government consultation with Tribes, including in those states where the State DOT has taken on NEPA Assignment.

See Delegation of Section 106 Responsibilities.

Tribal Consultation Essentials

There are no standard formats or procedures for tribal consultation. The FPO is able to provide guidance and plays an important role in developing tribal agreements and consultation protocols, but does not usually engage in project-level consultation.

Each Tribe is unique and, as a result, how FHWA consults with a Tribe must be developed in partnership with a Tribe. In addition, not only is a Tribe consulting with FHWA about projects in a state, a Tribe may also be consulting at the same time with other Federal agencies on their projects, both within and outside a state. Further, THPOs, and individuals designated by a Tribe to be the contact for Section 106 issues, may have other tribal responsibilities and obligations outside of the Section 106 review process. Given these and related factors, it is important to begin tribal consultation as early as possible, and to plan how and when tribal consultation will be integrated into the project development and NEPA review schedules.

Another tribal consultation essential is to partner with Tribes to discuss and identify, outside the project process, consultation protocols and procedures for future projects in a state. These protocols and procedures might even be formalized in an MOU, a Tribe-specific Section 106 PA, or a PA with multiple Tribes. Many FHWA DOs and State DOTs have discussed and developed these protocols and procedures during FHWA or State DOT-sponsored tribal summits, and other venues dedicated to establishing, maintaining, and improving relationships with Tribes.

Further resources on tribes:

Native Alaskans

Alaska has 229 Federally recognized Tribes (most of these Tribes reside in villages), and one Federal Indian Reservation (the Metlakatla Indian Community of Annette Island). Except for the Metlakatla Reservation, Congress extinguished reservations in Alaska in 1971 with the passage of the Alaska Native Claims Act (ANCSA). As a result, most land in the state previously recognized as Tribal is not considered Tribal lands. In addition to Alaskan Tribes, there are Native Alaska Village Corporations and Regional Corporations created by ANCSA. These are for-profit corporate entities, and Alaskan Natives are stockholders in these corporations. The Regional Corporations own surface land and subsurface resources, while the Village Corporations own surface land (the land in and around the villages).

As defined in the Section 106 regulations, Tribes, for the purpose of Section 106, include these Regional and Village Corporations, in addition to the Federally recognized Tribes. The corporations, however, are not sovereign governments like the Federally recognized Alaskan Tribes. FHWA, therefore, does not conduct government-to-government consultation with the corporations, only with the Federally recognized Alaskan Tribes.

Further resources on Native Alaskans:

Native Hawaiian Organizations

FHWA consults with NHOs about properties of religious and cultural significance that may be affected by a project. NHOs are not Federally recognized and are not considered sovereign nations like Tribes.

FHWA must make a reasonable and good faith effort to identify NHOs that might attach religious and cultural significance to properties within and near a project area. There is no official list of NHOs, and a group of individuals or an organization does not have to formally document that they are an NHO.

The following are some examples of NHOs:

  • Office of Hawaiian Affairs (OHA)
  • Island Burial Councils
  • Hawaiian Civic Clubs
  • Hui Malama I Na Kupuna O Hawaiʻi Nei
  • ʻOhana (families)

Sources of information for identifying NHOs include, but are not limited to, the OHA, Hawaii State Historic Preservation Division, Hawaii State DOT and other state and Federal agencies in Hawaii, and the Department of the Interior’s Office of Hawaiian Relations.

NHOs are an entitled consulting party; therefore, if an NHO approaches FHWA about consulting with them regarding properties of religious and cultural significance that may be affected by a project, FHWA must consult with them. Further, FHWA not only consults with NHOs within the vicinity of a project, but also with NHOs that may be located further away from the project area, if these NHOs have a connection to properties of religious and cultural significance within the project area.

Further resources on NHOs:

For questions or feedback on this subject matter content, please contact David Clarke.