NATIVE AMERICAN REQUIREMENTS UNDER

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1 NATIVE AMERICAN REQUIREMENTS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT Nancy Werdel Environmental Protection Specialist U.S. Department of Energy Introduction The National Environmental Policy Act (NEPA) of 1969 was enacted to promote efforts to prevent or eliminate damage to the vast resources of the United States. While the purpose of NEPA is the productive and enjoyable harmony between man and his environment, the processes developed by the Council on Environmental Quality for implementing NEPA are designed to analyze and disclose specific effects of their actions on all aspects of the human environment. This entails addressing the requirements of Federal and state laws, regulations, and Presidential Executive Orders when preparing appropriate NEPA documentation for a project. Native American Treaty Rights and Interpretation Many of these laws and regulation have some connection to Native Americans tribal rights. The origin of these rights stem from treaties signed in the 1800 s. These include the rights to self-govern and to regulate trade and travel on Indian lands. Under the treaties, tribes ceded certain lands, but reserved other lands and retained perpetual rights to perform certain activities on certain ceded lands (Tallbear, 2003). This includes rights to access natural and other cultural resources; hunt, gather, fish, and engage in traditional activities. The Federal government must uphold these rights, and actions taken may not impede these rights. Courts have interpreted these rights as the Indian who signed them would interpret them, meaning that if there is a disagreement on interpretation, the courts side with the Tribe. 1

2 Over the last 30 years, issues concerning the rights of Native Americans have evolved to a point of awareness by the general public. In the late 1960 s, the government s position shifted away from termination and began focusing on tribal self-government, beginning the Self- Determination Era of Native American history (DOE, 2003). President Nixon prepared several Executive Orders reaffirming the government s trust responsibilities and in 1975, Congress enacted the Indian Self-Determination and Education Assistance Act. This Act turned many of the responsibilities performed by the Bureau of Indian Affairs directly over to Tribal governments. The climax of the 1970 s was the passing of the American Religious Freedom Act in 1978, which protects the rights of Native Americans to practice their traditional religions. In the years that followed, Native American rights were reaffirmed by subsequent presidents. From the Native American view, the 1970 s and 1980 s brought a shift in political position as well as the Tribes began to demand their rights and struggled to become independent nations. In 1973, the American Indian Movement protested at Wounded Knee for the United States to uphold treaty rights and tribal rights to self rule (Lang, 2000). Throughout the 1980 s, the number of court cases concerning Native Americans rights doubled. Tribes found a means to provide jobs for memebers and establish an independent economy through building casinos and power plants on reservations. The case of Californa v. Cabazon Band of Mission Indians (480 US ) formalized the right of Tribes to operate gambling operations, and the Indian Gaming Regulatory Act in 1988, on the premise that the reservations were not part of the state and not subject to state laws in this matter. A New Era of Sovereignty The 1990 s brought a new era of Native American awareness to environmental laws and Federal trust responsibility. Several new laws concerning Native American rights were 2

3 promulgated and others were revised to give the Tribes more sovereignty, and address protection of Native American culture. Additionally, two Presidential Executive Orders were also signed that had great significance to Native Americans and require Federal agencies to integrate Native American trust responsibilities into agency policies and decision-making processes. These new requirements have brought Native American concerns to the front burner, and have had a tremendous impact on the preparation of NEPA documents and the NEPA process. There are many issues concerning integrating these rights into the NEPA process, from identifying specific impacts, to addressing trust responsibilities and conducting government-togovernment consultation. Some connections with Indian rights may be apparent in NEPA analysis, such as addressing impacts on cultural and historical properties or impacts on minority Indian populations. Others may be very subtle, such as identifying and addressing access to ceremonial places off the reservation. The NEPA practitioner must become well versed in these nuances in order to properly assess Native American issues in the context of the NEPA process. Overviews of these new requirements that must be addressed in the NEPA process and the implications and/or issues that must be worked through are discussed in the following paragraphs. Native American Graves and Repatriation Act The first Indian law enacted in 1990 was the Native American Graves and Repatriation Act (NAGPRA). This law protects Indian human remains and cultural items form intentional excavation and removal, inadvertent discovery, and illegal trafficking. It also requires that human remains and cultural items held by the Federal government or government funded institutions be repatriated to the Tribe(s) of origin. Discovery and repatriation have been a major contention between tribes and agencies for a long period of time. The issue of scientific 3

4 study versus Indian religious beliefs became a major issue in the news with the discovery of Kennewick Man in 1996 along the banks of the Columbia River. With this discovery, the U.S. Army Corps of Engineers was heavily criticized for the way the remains were handled. Numerous court cases ensued concerning Tribal rights. This discovery brought the issue of repatriation to the forefront and many government leaders began understanding their vulnerability and the costs associated with not addressing the rights of Native Americans (UW, 2006). When preparing NEPA documents, known burial sites must be avoided if possible, and provisions must be added to the mitigation measures for inadvertent discovery of human remains. National Historic Preservation Act The National Historic Preservation Act (NHPA) was amended in 1992 to add provisions under Section 106 for tribes to be more involved in the preservation program and enhance protection of places of cultural significance to Indians and Native Hawaiians (Section 101(d)(6)(a)). Under Section 106, tribes could form tribal historic preservation offices and govern NHPA implementation on tribal lands; the revisions provided funding to tribes for this purpose. It also crated a tribal competitive grant program for preservation of places of tribal significance. And to make sure that Native American concerns were properly addressed in historic preservation decisions, the new law created a position on the Advisory Council on Historic Preservation (ACHP) that would be filled with a Native American or Native Hawaiian. As a result of these changes, the ACHP filed the Proposed Rulemaking on Protection of Historic Properties in the Federal Register for the implementation of the Section 106. The ACHP s first attempt in October 1994 met with such negative comments that the Council told 4

5 staff to start over. The second attempt in June 1997 failed before a final ruling was made because staff did not consult with tribes on its contents. The Council directed staff to consult with Indian Tribes and four meetings were held throughout the country. A Final Rule went into effect on June 17, 1999, and was amended in August 2004 (NATHPO, 2003). These rules established for the roles and responsibilities of the State Historic Preservation Offices and Tribal Historic Preservation Offices on Indian lands. The TPHO has the same responsibilities for implementing the NHPA as a SHPO, and carries out these responsibilities on tribal lands, and acts as the official tribal representative in these matters. The changes to the NHPA require Federal agencies to consult with the TPHOs in lieu of the SHPO on project on tribal lands. Additionally, the THPO may establish regulations regarding cultural properties on tribal lands. The proposed rule for implementing the tribal historic preservation office (TPHO) by the National Park Service (NPS), under their authority for implementing NHPA, was issued in the Federal Register on August 12, Comments on the draft rulemaking from the National Association of Tribal Historic Preservation Officers (NATHPO) demonstrated that the NPS did not understand the tribes sovereignty and certain language promoted discrimination. The NPS rulemaking did not include government-to-government consultation, one of the main requirements of the revisions. No final rulemaking has been made to date. Despite the lack of procedures for managing the THPO program, 59 tribes have established THPO offices. Section 101(d)(6)(B) of the act requires the Federal agencies to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking regardless of the location of the historic property. These properties are called traditional cultural properties, or TCPs, and include 5

6 locations where ceremonies have been held through time, places associated with important events in tribal history, and places associated with important tribal people. Places must be a tangible property and can be an entirely natural feature. The Federal agency must consult with the Tribe and give the tribe a reasonable opportunity to identify properties and give their views on the undertaking. Additionally, the agency must make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the section 106 process. The issue of providing the tribes a reasonable opportunity was established in Pueblo of Sandia v. United States, 50 F.3d 856 (10 th Cir. 1995). The Pueblo sought to stop construction of a road in Las Huertas Canyon on the basis that the Forest Service had not adequately addressed the presence of TCPs in the Canyon. The Forest Service had consulted with the SHPO, who concurred that there were no cultural resources eligible for listing. To establish this, the Forest Service mailed form letters to tribal members asking for location of specific sites in the Canyon. However, since tribal members hold such information as confidential, they did not disclose any locations. Tribal officials told the Forest service that there were TCPs in the Canyon, including ceremonial paths, sites, and herbs used by the tribe, and the Forest Service told the tribes that TCPs would be affected as a result of increased traffic and visitation. After the dispute, the SHPO withdrew its concurrence of no effect to cultural properties. The court ruled that the level of effort uses depends on the likelihood that properties may exist, and that the tribes secrecy was a good indication that such properties exist. The court found that the Forest Service did not act in good faith when identifying properties. 6

7 Executive Order Executive Order was signed on November 6, 2000 by President Clinton. The Order was prepared to establish regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications. It emphasizes that all Federal agencies must establish an ongoing government-to-government relationship with Indian tribes. In accordance with the Order, executive branches have developed Native American policies and have designated an official to assure the Order s implementation. However, often these policies lack guidance to staff on how to carry out this responsibility. Some agencies are beginning to define how to proceed with government-togovernment consultation at a high level through the federal rulemaking process. Some have prepared guidance documents, such as the Department of Energy s Working with Indian Tribal Nations and the Bureau of Reclamation s Protocol Guidelines: Consulting with Indian Tribal Governments. However, these documents are prepared for consultation on policy level issues, where consultation occurs between high levels of the agencies. No specific information was found to support and guide government-to-government consultation at the project level. The Environmental Protection Agency (EPA) recently established draft guidelines for the consultation process (EPA, 2006). When developing these guidelines, EPA set out to follow the intent of the order and held extensive meetings with tribal members from each EPA region. The process took nearly six years from the signing of the Order to draft rulemaking. EPA, with input from the Tribes, established the following definitions of tribal implications: Directly impacts Tribal interests, such as access to natural resources that are specifically recognized by treaty, statute, etc. 7

8 Directly impacts Tribal natural resources and trust lands that the Federal government has a responsibility to protect. Directly applies to lands of interest to Tribes, including ceded land where Tribes retain usufructuary rights, reservation land, dependent Indian communities, and allotments. Directly applies to the activities, or impacts the authority, of Tribal governments. These definitions paint a broad picture of Tribal interest. Under the treaties, the tribes reserved rights to access natural and other cultural resources; hunt, gather, fish, and engage in traditional activities. This includes protection of the natural resources that Native Americans have rights to, possibly land that was once ceded land that the Federal government sold to private parties. Environmental impacts on Tribal members from pollution, public health, air pollution, transportation and other resource areas, on and off the reservation, are included in these definitions, and impacts on tribal members from these impacts must be assessed in NEPA documents. The customary manner in addressing impacts to resources may not be sufficient. For example, addressing the impacts to biological resources for impacts to wildlife and endangered species is not the same as addressing the impacts of Native American rights for hunting, gathering and other traditional activities. The NEPA document needs to address the risks to these tribal resources. Evaluation of these types of impacts is difficult to comprehend by someone unfamiliar with Native American culture. Because it is difficult to understand the full breadth of any single tribe s traditional territory, or ceded lands, the only way to know whether a project has Tribal interests is to conduct government to government consultation. Many consultations have not gone well or 8

9 have been neglected. For example, the Penobscot Nation of Maine traditionally used the Penobscot River for fishing, a vital portion of their traditional culture. In 1992, a pulp and paper plant applied to EPA for a permit to discharge effluent. During the permitting process, the tribe was not considered a primary affected party, and was not given the opportunity to comment on the permit application. Impacts to the health and culture of the Penobscot Nation, such as the effects of the pollutant on fish populations, uptake of pollutants in fish and the effects on tribal members of eating the fish and the ability of the tribes to sustenance fish were not addressed. Under this example, EPA s procedures for issuing discharge permits had not incorporated the intent of the Executive Order. It is easy to see how a Federal agency could not take these requirements into account. The consequence could result in the challenge of a NEPA decision if the agency did not put in an effort to address Native American concerns, or the process of government-to-government consultation was not followed. Issues with Implementation There are numerous institutional and cultural barriers that prevent meaningful communication between Native Americans and Federal agencies. Many Federal agencies do not understand the government-to-government consultation process and treat Tribes as general publics. With implementation of Executive Order 13175, this view has changed; however, project level staff have received very little training on Tribal relationships, issues and consultation practices. Guidance documents are written at policy level issues, and NEPA practitioners generally have little experience with this level of consultation. Another lack of knowledge is in the general government structure of the tribe, and different tribes have different established governments. Traditional tribal government is much different than a democratic government. Tribal elders usually are only present at meetings with 9

10 high officials. During consultation at the project level, staff members would be present, yet they make recommendations to the tribal council that makes the decisions. The tribal council may only meet once months, making the consultation process take a long time. In some tribes, the tribal council does not have the authority to make decisions; decisions must be made by a vote of all tribal members. Additionally, Tribal governments rely on small budgets provided through the Bureau of Indian Affairs. Lack of funding can also play a role in response times from tribal representatives. From the agency point of view, the impediment becomes the time it takes to conduct government-to-government consultation. Contacts with tribes do not take a normal course of contact. Identifying the right tribes within the project area is often difficult. Generally, ceded lands with Indian rights cover a very broad territory, and there may be many tribes that have some kind of Tribal interest within an area of a proposed project. Many tribes practiced a nomadic lifestyle and had a very large territory, or practices religious ceremonies further away. Additionally, specific tribes located on reservations in a given state may actually have traditional hunting or gathering grounds in a completely different part of the country. Or, bands of a Tribe may have connections to another Tribe and summered or wintered in different locations (Barger, 2006). The logistics of identifying the right tribes, contacting them, and arranging for meetings can be time consuming. Often letters sent to tribes go unanswered, and just sending letters does not suffice for government to government relations. If multiple tribes have interest, many meetings may need to take place, as each Tribe is a separate entity, and often the tribes have different issues. Experts in Tribal relations are often contacted to help identify what tribes may be interested in a specific location, and contact tribal members. The NEPA practitioner must be 10

11 aware of these requirements, agency policies and procedures, and allow ample time for the consultation process to occur. From the tribe s point of view, sovereignty is the most important issue. Tribes expect to be treated with the same respect as a separate nation. Because of past experiences with the Federal government, tribes often have trust issues and are skeptical about the sincerity of the agency s representative. Proper protocols for consultation must be followed. For example, several guidance documents on how to conduct meetings with Tribes suggest that the agency allow tribal officials to start and end meetings with a prayer, thus opening and closing the circle. Other suggestions include introducing yourself in accordance with who you are, not where you work. Seating should be arranged in a circle, so all persons are equal. Try not to ask direct questions, and be prepared for long monologues. Tribes also feel that the goal of consultation is consensus and an exchange of ideas. Under the NEPA process, when tribes submit comments on an environmental impact statement, they expect comments in return (Adelzadeh, et. al. 2003). Furthermore, Tribes expect an ongoing dialogue, and are not so responsive to a one-time meeting to acquire comments on a document then leave. The consultation process is an ongoing relationship with the agency. The biggest barrier comes from a difference in culture. Communication style differences between Native Americans and the dominant American culture plays a major part in misunderstandings during the consultation process. In anthropological terms, the dominant culture in America is a low-context culture, while Native Americans are a high-context culture. 11

12 The differences are: Low context culture emphasis: earned status individual achievement self-reliance independence factual/scientific thinking planned time individual competition High context culture emphasis ascribed status relationships that are stable and harmonious reliance on others intuition time stretches cooperation These differences can result in cultural misunderstandings. Government processes are always time driven (DOE, 2000). The time allowed in the NEPA process may not always be congruent with consensus building and harmony that is important to the Tribes. Additionally, agencies base their decisions on facts and scientific evaluation. Tribes, on the other hand, may not make their decisions based on facts, but use their intuition as their guideline. These differences can only be overcome through regular communication and building relationships with the various tribes. Conclusions: The NEPA process must address laws, regulations and Executive Orders that concern Native Americans. Based on these laws Federal agencies must do the following as part of the NEPA process: Identify Tribes with trust responsibility in the vicinity of the project Consult with tribes for impact to Native American culture and peoples Consult with Tribes under the NHPA and make a good faith effort to identify any properties with cultural or religious significance to the Tribe 12

13 However, implementation of a law is never as simple as its intent, as there are as numerous nuances, circumstances, and interpretations as there are actions. Addressing Native American concerns in the NEPA process takes time, and should be planned for early in the project schedule.. It is apparent that consultation is a very important requirement for agencies to meet the intent of laws and Executive Orders pertaining to Native Americans. Since Native American interests extend to all natural resources, not just cultural resources, agencies must initiate consultation during the scoping process to make sure Native American issues are addressed in the NEPA process. Agencies do not properly train personnel on the requirements for consultation. To successfully conduct consultations, the NEPA practitioner must be trained on Native American culture, Tribal government structure, differences in culture, and communication with tribal leaders and members. Practice in communicating with tribes and how to conduct meetings is also very important. Training on the NHPA 106 process should also be part of qualifications for NEPA positions. The last 10 years have seen a significant change in how Federal agencies view their responsibilities towards preserving Native American treaty rights. Lessons learned and guidance documents have begun to inform Federal agency leaders of their responsibilities and costs of non-involvement of Tribes in matters that affect them. This new era is very young, and as experience is gained, the consultation process will go smoother and more agencies will fully engage in the process. Over time, prejudices and trust will be built between the Nations. 13

14 RESOURCES Adelzadeh, et.al., Tribal Issues and Considerations Related to Collaborative Natural Resource Management. Ecosystem Management Initiative. School of Natural Resources and Environment. University of Michigan pdf. Accessed May 1, Barger, Personal conversation with Mary Barger, Federal Historic Preservation Officer, Western Area Power Administration. April, DOE, Working with Indian Tribal Nations. A Guide for DOE Employees. U.S. Department of Energy. Creighton & Creighton Inc EO 13175, Consultation and Coordination With Indian Tribal Governments. Federal Register. November 9, EPA, Review of Environmental Protection Agency Draft Guidance for Implementing Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. Federal Register. April 19, Lang, Debbie, Reign of Terror After 1973 Wounded Knee. Resistance Stories of the Lakota People. Revolutionary Worker #1039. January 23, Accessed May 7, NAPTHA, Special Tribal Workshop for Tribes Interested in the Tribal Historic Preservation Officers (THPO) Program. National Association of Tribal Historic Preservation Officers. Washington, D.C NPS, Federal Historic Preservation Laws. National Center for Cultural Resources. National Park Service. U.S. Department of the Interior. Washington D.C Tallbear, Kimberly M., Understanding the Federal/Tribal Relationship and Barriers to Including Tribes in Environmental Decision-making. International Institute for Indigenous Resource Management. Denver, CO UW, Kennewick Man Virtual Exhibit. Burke Museum of Natural History and Culture. University of Washington, Accessed May 6,