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FHWA 2006 Environmental Conference MaryAnn Naber June 29, 2006

Consulting with Tribes in Section 106. FHWA 2006 Environmental Conference MaryAnn Naber June 29, 2006. Section 106 of the National Historic Preservation Act. Requires Federal agencies to: take into account the effects of their actions on historic properties

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FHWA 2006 Environmental Conference MaryAnn Naber June 29, 2006

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  1. Consulting with Tribes in Section 106 FHWA 2006 Environmental Conference MaryAnn Naber June 29, 2006

  2. Section 106 of the National Historic Preservation Act • Requires Federal agencies to: • take into account the effects of their actions on historic properties • afford the Advisory Council on Historic Preservation an opportunity to comment • 16 U.S.C. 470f

  3. Section 106 Participants • Federal agencies • Advisory Council • Consulting parties • SHPO/THPO/Tribe, applicants, local government, Tribes who attach religious and cultural significance, additional consulting parties • Public 36 CFR 800.2

  4. Tribal Historic Preservation Officer (THPO) • THPO is official representative when tribe has assumed SHPO responsibilities under NHPA 101 (d)(2) • Must be consulted in lieu of SHPO for projects on or affecting historic properties on tribal lands • If there is no THPO, agency official consults with representative designated by the tribe and SHPO 36 CFR 800.2(c)(2)(i)

  5. Indian Tribes and NHOs • Must be consulted when they attach religious and cultural significance to affected historic properties on or off tribal lands -- Section 101(d)(6)(B) • Agency must make good faith effort to identify tribes which may have aboriginal, ancestral, or ceded land interests • Concurrence not required when property is located off tribal lands 36 CFR 800.2(c)(2)(ii)

  6. I have no idea which tribes to consult. Where is there a list?

  7. What is a “reasonable and good-faith effort” to identify tribes?

  8. Since there are no federally recognized Indian tribes here, we do not have to worry about tribal consultation. Right?

  9. Consultation with an Indian tribe is only required when the project is on Tribal land. True or False?

  10. Tribal Sovereignty and Consultation • Tribal sovereignty necessitates consultation with tribe regarding their tribal lands • The Section 106 regulations require consultation: • be conducted in sensitive manner respectful of tribal sovereignty • recognize government-to-government relationship between tribes and the Federal government 800.2(c)(2)(ii)(B),(C)

  11. Initiate Section 106 Process Establish undertaking Identify appropriate SHPO/THPO Plan to involve the public Identify other consulting parties NO UNDERTAKING/ NO POTENTIAL TO CAUSE EFFECTS Scoping UNDERTAKING MIGHT AFFECT HISTORIC PROPERTIES Identify Historic Properties Determine scope of efforts Identify historic properties Evaluate historic significance NO HISTORIC PROPERTIES AFFECTED Information gathering HISTORIC PROPERTIES ARE AFFECTED NO HISTORIC PROPERTIES ADVERSELY AFFECTED Assess Adverse Effects Apply criteria of adverse effect Include determination in NEPA doc HISTORIC PROPERTIES ARE ADVERSELY AFFECTED MEMORANDUM OF AGREEMENT Resolve Adverse Effects Continue consultation During public comment COUNCIL COMMENT FAILURE TO AGREE

  12. Evaluation of Significance • National Register criteria applied with SHPO/THPO and any tribe that attaches religious and cultural significance (on or off tribal lands) • Properties of traditional & religious significance to tribes may be eligible • Agencies shall acknowledge expertise of tribes in assessing eligibility of properties of significance to them 36 CFR 800.4(c)

  13. Can a sacred site be eligible for the National Register?

  14. NHPA Provisions • Properties of religious and cultural significance to an Indian tribe may be eligible for the National Register (101(d)(6)(A)) • Federal agencies must consult with any Indian tribe that attaches religious and cultural significance to historic properties (101(d)(6(B))

  15. Step III: Assessment of Adverse Effect • Agency notifies consulting parties of potential effects and invites their views • Agency applies criteria of adverse effect with: • SHPO/THPO • any tribe that attaches religious and cultural significance to a property • Agency must consider views provided by other consulting parties & public 36 CFR 800.5

  16. Do we have to pay tribes to obtain their comments?

  17. Step IV: Resolution of Adverse Effects • Consultation - dynamic, good faith process to seek, discuss, and consider the views of participants • Goal is agreement on ways to avoid, minimize, or mitigate adverse effects and incorporate into MOA • Council participates only in limited circumstances, but must be notified • Agency must seek views of consulting parties, including THPOs and tribes 36 CFR 800.6

  18. The tribes have asked to sign the agreement as signatories, what do you do?

  19. What are the basic principles of tribal consultation outlined in the ACHP regulations?

  20. For more information: • www.fhwa.dot.gov/environment • Historic Preservation Program • 23 CFR Part 771.135 – 4(f) regs • www.achp.gov • National Historic Preservation Act • 36 CFR Part 800 – Section 106 regs • www.cr.nps.gov • National Register guidance

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