The Fly in the Ointment: Consultation Under Section 106 and Other Laws Related to Historic...
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Transcript of The Fly in the Ointment: Consultation Under Section 106 and Other Laws Related to Historic...
The Fly in the Ointment:Consultation Under Section 106 and Other Laws
Related to Historic Preservation
Peacekeeper Conference, 1985
Under Section 106 for NHPA
If an adverse effect will occur, the agency responsible for the federal undertaking consults with the SHPO and others in an effort to find ways to make the undertaking less harmful.
Others who are consulted, under various circumstances, may include:•Local governments •Indian tribes•Property owners •Other members of the public•Advisory Council on Historic Preservation
Matthew King (Noble Red Man) and Air Force Officers at Peacekeeper Conference 1985
Consultation is designed to result in a Memorandum of Agreement (MOA)
The MOA outlines measures agreed upon that the agency will take to reduce, avoid, or mitigate the adverse effect.
In some cases, the consulting parties may agree that no such measures are available, but that the adverse effect must be accepted in the public interest. If consultation proves unproductive, the agency or SHPO, or the Council itself, may terminate consultation.
The agency must submit appropriate documentation to the Council and request the Council's written comments.
Inhanktonwan (Yankton Sioux) delegation in Washington, DC, 1912
Problem 1: Identifying the Relevant Stakeholders
Definition in the law and regulations
Self-identified
Communities of interest
Fools Crow blessing the consultation at the Peacekeeper Conference, 1985
How do you know if you have the right communities?
Competing interests
Orser & Singleton experiences in Irish and African American communities
Factions within a single community
Traditional vs. “progressive”
Native American Consultation
The most problematic in many ways
The 1992 Amendments to (NHPA) require all Federal agencies to consult with Indian Tribes or Native Hawaiian if undertakings may affect properties of traditional religious and cultural significance on or off Tribal lands.
The Section 106 regulations (36 CFR 800) implementing the NHPA were revised on January 11, 2001 to reflect this change. Section 36 CFR 800.2(c)(2)(ii)(A) states that
"the agency official shall ensure that consultation in the Section 106 process provides the Indian Tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking's effects on such properties, and participate in the resolution of adverse effects."
What Tribes need to be consulted?
Federally recognized Tribes or Native Hawaiian organizations:
• that attach religious and cultural significance to properties that may be affected by Federal-aid undertakings on or off Tribal Lands.
•that no longer reside in a given area, but may still have ancestral affiliations to a place.
•that have been mobile both historically and ancestrally and
•that may very well have places that are important to them in locations where they may not have physically resided for hundreds or even thousands of years.
How do I know if a tribe or groups is federally recognized?
•A list of federally recognized tribes is available at www.doi.gov/bureau-indian-affairs or http://www.indians.org/Resource/FedTribes99/fedtribes99.html.
•For a list of non-recognized tribes see http://www.kstrom.net/isk/maps/tribesnonrec.html .
Identifying all the Tribes that may have an interest in an area
Documentary sources: ethnographies, field records, histories, experts at local universities, and oral accounts
No single source is comprehensive.
The SHPO or other THPOs
The Native American Consultation Database (NACD) geared toward NAGPRA, but good for other issues
MAPS: GIS Windows on Native Lands, Current Places, and History provides maps on current and ancestral locations of Indian lands.
Indian Land Cessions in the United States is also an invaluable resource on historic Indian land areas.
Consultants
Making formal contact with Tribes: Ideal Agency officials should initiate contact with Tribes at the highest
level.
Government-to-government relations
Tribes are sovereign nations and must be shown the same respect and formality as any other independent nation.
The contact is generally the Chief, Chairperson, Governor, or President of the Tribe
The agency official needs to consult with individuals designated by the Tribe or Native Hawaiian organization for this purpose.
Once a Tribe has been contacted, protocols for consultation can then be developed through discussions and meetings with individual Tribes.
These may differ from Tribe to Tribe or Native Hawaiian organization as each may have very different belief systems, worldviews, and cultural protocols.
Making formal contact with Tribes: Real
Relatively few THPOs
Heritage offices are vastly overworked
White Earth [MN] Band example
Few have research protocols
NPS/Effigy Mounds Cultural Affiliation project example
Use networks and first hand contacts
Appropriate Consultation Methods
There is no single solution!
Letters: into the black-hole of tribal governments
If no response, follow up calls, e-mails, meetings
Usually necessitates a trip to the tribe
Shows that you are serious and respectful
Useful for other reasons:
Tribe may not wish to be notified about every project that comes up in a given area
Power Relationships in Consultation
Consultation is rarely a meeting of equals.
Status and power determine the effectiveness of each party in consultation
A person or group requesting the consultation can have the financial power to initiate a proposal
A person or group being consulted can have the power to prevent the realization of that proposal, either through aggressive action (vocal opposition to the proposal) or passive-aggressive action (delaying tactics or lack of support of the action).
See Watkins (2001), 'The Powers That Be': Power, Role, and Interaction in the Consultation Process for ways to decrease power relationship issues―most involve cultural sensitivity
Privileged informationBelief systems require that the location and even the existence of traditional religious and cultural properties not be divulged.
Vital to work with Tribes to identify sensitive locations while respecting tribal desires to withhold specific information about these types of sites.
Section 304 of the NHPA permits Federal agencies to withhold sensitive information from public disclosure.
Issues surrounding confidentiality concerns can also be included in an agreement document between the Tribe and Federal Agency as provided under Section 800.2(c)(2)(ii)(E) of the regulations.
See National Register Bulletin 29, Guidelines for Restricting Information About Historic and Prehistoric Resources
Boiling Springs TCP, first TCP in Minnesota, sacred to the Dakota
Remember:
Consultation may be one of the most difficult parts of CRM.
Notification is not consultation!
There are no “silver bullets” or easy formulas for consultation.
It should go without saying, but: Always be humble when consulting.
Always be respectful when consulting.
Always be honest when consulting.