I. Initiation of the Section 106 Process
One of the first steps a Federal agency takes is to determine if the undertaking may occur on or affect historic properties on tribal lands and, if so, whether the Indian tribe has assumed the duties of the State Historic Preservation Officer (SHPO) under Section 101(d)(2) of NHPA².
If a tribe has assumed the duties of the SHPO, does the SHPO still participate in consultation for undertakings on tribal lands?
Only if a non-tribal property owner within the exterior boundaries of the reservation requests that the SHPO participates, or if the Tribal Historic Preservation Officer (THPO) and agency agree to invite the SHPO to participate, does the SHPO still participate in consultation for undertakings on tribal lands. In all other cases, the Federal agency consults with the THPO in lieu of the SHPO on tribal lands.
What is the purpose of the provision that allows property owners on tribal lands to request SHPO participation in addition to the THPO?
The provision, following the express language of Section 101(d)(2)(D)(iii) of NHPA, provides that a non-tribal property owner who owns lands within the exterior boundaries of a reservation can request the SHPO to participate in a Section 106 consultation even when the tribe has assumed the role of the SHPO. It is designed to provide an opportunity for a property owner, whose interests in historic preservation may not necessarily be represented by the THPO, to include the SHPO in the consultation.
Does the THPO have the same role and responsibilities in the Section 106 process on tribal lands as the SHPO does off tribal lands?
Yes, the THPO carries out all of the Section 106 review functions of the SHPO and is bound to respond to requests to review an agency's findings and determinations within the time frames set by the regulations. Failure of a THPO to respond when there is such a time frame permits the agency to assume concurrence with a finding or determination or to consult with ACHP in the THPO's absence. Subsequent involvement by the THPO is not precluded but the THPO cannot reopen a finding or determination that it failed to respond to in a timely manner earlier in the process.
When there is no THPO, who represents the tribe in consultation for an undertaking on tribal land, including signing an MOA on behalf of the tribe?
Tribal participation in the Section 106 process is conducted through the tribe's official governmental structure. The formal representation, including designation of the tribal signatory for the tribe, is determined by the tribe in accordance with tribal law, internal structure, and governing procedures. Other tribal members who wish to participate in the Section 106 process must do so as members of the public and may seek to become consulting parties with the consent of the Agency Official. However, the views of the Indian tribe are provided only by an officially designated representative of the tribal government.
When there is no THPO, does the agency also consult with the SHPO?
Yes, the agency consults with the tribal designated representative and the SHPO when there is no THPO. If the SHPO withdraws from consultation, the Federal agency and the tribal representative may complete the review process. An Indian tribe may enter into an agreement with the SHPO specifying the SHPO's participation in the Section 106 review process on tribal lands.
Does the Federal agency have to consult with other Indian tribes when the undertaking is on tribal lands?
A Federal agency must make a reasonable and good faith effort to identify Indian tribes that attach religious and cultural significance to historic properties affected by the undertaking. Some tribes may attach such significance to historic properties located on another tribe's lands. The Federal agency must consult with them as well. While this may present challenges in carrying out consultation, it does not absolve the Federal agency from the obligation to consult. The Federal agency must respect a tribe's sovereignty in matters such as access to historic properties within the reservation. Accordingly, it may be necessary for the agency to consult with each tribe individually and to do so off the reservation.
II. Identification of Historic Properties
What are the consultation requirements at this stage of the process?
The Federal agency is required to consult with the THPO/tribal representative to:
1) determine and document the area of potential effects;
2) review existing information;
3) seek information from consulting parties and gather information from Indian tribes to assist in identifying historic properties which may be of religious and cultural significance; and
4) carry out identification and to evaluate the National Register eligibility of identified historic properties.
What happens if there is a disagreement between the SHPO and tribal representative on National Register eligibility?
The concurrence of both the SHPO and the tribal representative is required for an agency's determination of eligibility or ineligibility to stand. If either disagrees, the Federal agency is obligated to seek a formal determination of eligibility from the Keeper of the National Register.
What happens if there is a disagreement between the THPO and the agency on National Register eligibility?
The agency must seek a formal determination of eligibility.
III. Assessment of Adverse Effects
What are the consultation requirements at this step?
The Federal agency consults with the THPO/tribal representative:
1) to apply the Criteria of Adverse Effect to historic properties within the area of potential effects, and
2) in reaching a finding of "no adverse effect."
What happens if there is a disagreement between the THPO/tribal representative and the agency on a finding of "no adverse effect"?
If the THPO/tribal representative disagrees within the 30-day review period, the agency must either consult with the THPO/tribal representative to resolve the disagreement or request ACHP to review the finding.
IV. Resolution of Adverse Effects
What are the consultation requirements at this step?
The Federal agency consults with the THPO/tribal representative and other consulting parties in an attempt to develop and evaluate alternatives or modifications to the undertakings to avoid, minimize, or mitigate adverse effects. Any consulting party may request ACHP to participate in this consultation.
What happens if agreement is reached?
The Federal agency and consulting parties, including Indian tribes, develop an MOA outlining how the adverse effects will be resolved. The Federal agency must invite the THPO/tribal representative to be a signatory to an MOA.
What happens if the Federal agency and the THPO/tribal representative fail to agree?
The agency must then invite ACHP to join the consultation. The THPO/tribal representative may determine that further consultation will not be productive and terminate consultation. The tribe must then notify the agency and other consulting parties of the determination and the reasons for terminating. ACHP must comment when the Indian tribe terminates consultation since the agency and ACHP cannot execute an agreement without the tribe.
When an undertaking takes place or affects historic properties on tribal lands, can a two-party agreement be concluded between an agency and an Indian tribe when the SHPO opts out of consultation even though the tribal representative is not a THPO?
Yes, because such a tribe has the same rights as a THPO. An Indian tribe may reach agreement with a Federal agency on the terms of an MOA. Execution of the MOA by a tribal representative and the Agency Official (along with filing the MOA with ACHP) would complete the Section 106 process.