Panel on Federal Perspectives on Consultation
Please see my handout on the Interagency Tribal NEPA capacity work group. This group was formed for many of the same reasons as this meeting. We need to get the word out to the greater community and until we do that we are missing an opportunity to improve the federal government's decision-making process. We need to get folks engaged, early on, and have an ongoing dialogue. Some federal agencies don't understand a perspective that mounds, plants, etc. have spiritual significance for tribes. This work group is not designed to benefit any one group -- we can all benefit from one another. Some tribes are very well trained, some tribes do not know what NEPA is. It's the same way with Federal agencies' understanding of tribes planning processes and environmental concerns.The Interagency Tribal NEPA capacity work group memo includes the long and short term goals. There is a wide diversity of knowledge and expertise out there -- we wish to harness it and get it out to all the agencies. It is helpful to everyone to understand the processes on both sides of the table. It doesn't always occur. Providing information and training is one thing this group is focusing on.Some tribes are developing Tribal Environmental Policy Acts (TEPAs). The end-of-the-process "surprise" is the one factor that derails NEPA and planning processes more than any other. At the end of the day, there are issues people deeply care about that have never been addressed -- our goal is to get these issues on the table at the start and thereby avoid later re-starts and delays.We (CEQ) have already started training. I am trying to get a handle on who are the NEPA contacts for the federal agencies, as well as who are the tribal contacts in the agencies. Now we also need to know who the tribe's contacts are. We want to focus on outreach and we need to have a mechanism in place for establishing contacts and opening lines of communication so that we can learn what the needs are. If we can't identify the tools that are needed, then we are not going to be very successful.Current examples that merit mention involve training and outreach. DoD is the model for training, many people have found their training extremely useful. Examples of increasing outreach are the FAA by establishing their regional coordinators, and the Army Corps of Engineers which is increasing its outreach and improving relationships. All of us need to work together to pool our research, establish a comprehensive list of regional coordinators, and provide examples of how effective the right people can be.CEQ is beginning to work on developing a web portal, and we have learned that Interior is also doing this. We'll explore ways to work together and not waste resources duplicating efforts. The major overall goal is to make information accessible to all -- federal agencies and tribes.
The Advisory Council on Historic Preservation (ACHP) is the agency that overviews the section 106 review process. We have been in existence since 1966. We have Presidential appointees and employees. In 1992, the National Historic Preservation Act (NHPA) was amended. Let me broaden the dialogue to include Native Hawaiians because they have the same rights under NHPA as Tribes. We established the Native American program at ACHP in 1998. We have been developing this program and it has really flourished recently, but it is an unfunded program.First, we assembled a group of tribal leaders to find out what the issues are and we developed an action plan. A problem we identified in the plan is a lack of respect for traditional cultural knowledge. We have developed a set of initiatives, some of which have already been put in place, such as establishing a Native American advisory group because we needed a greater Native American voice in what we do. We invited every tribal leader to nominate an advisor. We have a candidate from each Bureau of Indian Affairs region that will work with us on issues and advise us. We will be posting information on our website on what the advisory group wants to work with us on. The group includes tribal leaders and demonstrates their interest in historic preservation. We are also working with the National Association of Tribal Historic Preservation Officers to identify best practices on consultation under the section 106 process. The report should be finished in October or November.We asked tribes to send in good examples of consultation that will also appear on our website. We are also offering training with the Department of Transportation on consultation with tribes. This training is in partnership with tribes. We do not do training on tribal issues without tribal input and participation. We are also working with:
- the Federal Emergency Management Agency (FEMA) on consultation guidelines.USEPA on a Section 106-Environmental Justice workshop
- Training for tribes. We have trained about 100 tribes so far in the section 106 process. That is an ongoing challenge for us.
We participated in the Native Sacred Sites Summit last year and are going helping to organize the upcoming one.
The mapping program mentioned yesterday has been terminated because of lack of funding and lack of means.We recently issued a trust statement. This is the legal analysis of our trust responsibility. This statement was issued in response to the question we are always asked -- how do we see our trust responsibility. One of our missions is to improve consultation under the section 106 process.
Audience question: Will the second Sacred Sites Summit focus on consultation?
Response: The focus will be more action-oriented. We will discuss what we are all trying/going to do.The Sacred Sites Summit was an outgrowth of initiatives by the Inter-Agency Working Group on Environmental Justice, Chaired by Quentin Pair, from the Department of Justice.
Paul Lumley, Department of DefenseRecent professional experience includes working on salmon issues, which are among the most controversial issues in the Northwestern US. Now I work for DoD as the Senior Tribal Liaison. Natives serve in the military at a much higher rate than any other ethnic group in the United States. The DoD has a Native American Policy and takes it seriously. Our policy handout outlines our trust responsibility. The DoD also receives funds to implement the Native American Lands Environmental Mitigation Program, which is designed to restore lands impacted by past DoD activities. Projects are prioritized by taking into account traditional and modern perspectives. The DoD is also working towards full compliance of the Native American Graves Protection and Repatriation Act.The Lummi Nation is bringing a totem to the Pentagon. This is the third part of its 9/11 program. There will be a ceremony at the Pentagon on September 19. The totem poles are called Liberty and Freedom and will commemorate those who lost their lives in the terrorist attack on the Pentagon.Visibility is a problem for DoD's Native program. The program does not have a lot of exposure in Indian country. The DoD also has a Cultural Communications Course that is designed to improve DoD relations with tribal governments. The next course is planned for California and another course will be scheduled in Alaska. Although the course is not open to the public, other federal employees have attended when space is available. Some agencies actually ask tribes, "How are we doing?" I think that would be a good exercise for all agencies -- oriented toward successes and bridging gaps. Our program does not have much visibility in Congress, either. Nor with the public. We have our work cut out for us.Some general themes in consultation are
- Denial or ignorance: I don't have to do this / I don't know what to do. The second comment is legitimate. Blame the tribes: There are too many / I couldn't get a consensus / I couldn't get a response. I'm going through the motions: I can document consultation, but I will not take tribal opinions into consideration.
- Full and effective experience: A decision has not yet been made, but we are going to at least ask your opinion. Even if we agree to disagree, we will know why.
As governments change, so do the people, so do the employees. This is the same for feds or tribes. It should be clear how to get a hold of folks. Take time to establish relationships and you will know who to ask and how to get information. DoD funded a Policy Demonstration project. Navy has established a multi-year regional project, and although it has consultation in its title, it is not consultation, but it is still valuable in its own way. This is a way to get tribes together. A regional discussion and meeting like this may be helpful.Tribes don't have a governmental structure like states where they have constant funding. In general, people / tribes seeking environmental grants must compete against each other for one or two year grants. How can tribes increase their capacity to deal with environmental and tribal issues? This is an important question for all federal agencies to ask themselves.The Tribe must agree that a meeting is consultation before it is really consultation. Audience comment: In response to the four types of consultation described, I hear blaming of the tribes all the time. So we did a survey to get baseline information of tribal structure, government, justice agencies, court system, etc. 98% of the tribes in the lower 48 responded. We are going to get some excellent baseline information. We are developing this database of information. We are trying to get tribal codes online in a searchable database on the national tribal justice research center. This was a request from tribal judges to get the codes out there. This information is going to be available in the winter of this year and published on the net.
I'd like to give some history of FCC involvement with Indian country. The FCC was created in 1944 in response to the sinking of the Titanic because of concern that there was not enough regulation on frequencies.The FCC is an economic regulator, not a grant-making agency. There are only 1,800 people in the FCC, but we produce the third largest amount of paper in the Federal government. The FCC has regulatory power over inter-state, but not intra-state, communications. The FCC charter does not mention tribes once.FCC-tribal interaction kicked into high gear in 1996. FCC worked to try to set up processes to talk to tribes, but the information was not dispersed throughout the agency. In 1990, 96% of US households had phones, 48% of Indian households did. So though there was no direct trust responsibility, it spurred FCC to action. Amos Loveday is FCC cultural resource director.Bureaucracy in the FCC is unbelievable. What allowed 70 years of inaction by companies in Indian country? There is a fund everyone pays into that assists with coverage for rural libraries, schools, etc. We rearranged that to help Indians -- the tribes said, you need to recognize our sovereignty as a government-to-government relationship. The FCC is an independent agency not an executive agency. We made a firm commitment to consult with tribes. The FCC recognizes that it is the right of tribes to decide their own communications needs.The tribes said they needed assistance and outreach, which began in 2000. We have had to implement some short, steep learning curves in order to consult. The placement of cellular towers involves tribes. We have had to fight to get funding to get out to Indian country. It is as important to get out there as it is for Indians to come here. An example of why consultation is important. The FCC is in the middle of a controversy because anyone can build a tower, FCC regulates only those who take advantage of (use) the tower. This will be a major issue as development occurs. Stakeholders in this issue are major companies, Indians and the FCC. FCC did an in-depth consultation -- it was post-decision and publication was two weeks away. This is what not to do. The FCC put off publication for 6 months in order to get input from tribes.An issue is that there are so many towers that the FCC cannot consult on every tower and tribes are overwhelmed with the number of contact companies, etc. There is an overwhelming need for a process. The FCC signed a Memorandum of Understanding with the United Southeastern Tribes. Then Verizon came to the table, we took some of what they said into consideration as well. There is an issue as to how and when to appropriately involve stakeholders. Tribes often want to bypass FCC altogether.Every agency has a different definition of Indian country. FCC has different definitions of Indian country within itself. The people who work in Indian country need definitions, legal background, etc. Tribal consultation is justified the law.
Audience question: You mentioned a policy that recognizes sovereignty. When the agency created that, did you consult with other agencies on their definitions of sovereignty?
Response: What we did is reaffirm and recognize that sovereignty is inherent. We do consult with other agencies. In terms of our outreach, FCC is not an organization that will dictate to tribes what solution they should imply. We also work with the Department of Housing and Urban Development.
Audience question: When multiple agencies are involved in consulting with tribes, what efforts do you take in coordinating with each other?
Response: Normally, I would recommend that it be coordinated to minimize confusion and repetition. We've had to coordinate with several federal agencies, so we have a caucus and a staff level liaison and group meeting so issues are worked out before going to the tribe, and we also work with native advocacy groups or tribal groups Usually, what it needs is someone to take ownership and coordinate such an effort.
From a tribal perspective, I can see how agencies don't coordinate. The tribes will try to use the lack of cooperation against you. But in most instances, the tribes want agencies to coordinate.