CHAPTER 3 CULTURAL RESOURCES MANAGEMENT--TRIBAL RIGHTS, ROLES, CONSULTATION, AND OTHER INTERESTS (A DEVELOPER'S PERSPECTIVE)1

• Jurisdiction: United States

Federal Regulation of Cultural Resources, Wildlife & Waters of the U.S.
(Apr 2012)
CHAPTER 3
CULTURAL RESOURCES MANAGEMENT--TRIBAL RIGHTS, ROLES, CONSULTATION, AND OTHER INTERESTS (A DEVELOPER'S PERSPECTIVE)¹
Walter E. Stern
Modrall Sperling, Roehl, Harris, & Sisk, P.A.
Albuquerque, New Mexico

WALTER E. STERN focuses his practice on helping businesses and people engaged in natural resources and energy development activities on Indian lands, on state school lands, and federal public lands. His practice includes experience representing private businesses in permitting, leasing and related project development transactions, and litigation with state and federal governments, Indian tribes, and other Native American groups around the west and across the country. Walter is a director and shareholder in the Albuquerque, New Mexico office of Modrall Sperling. Walter has been active in the affairs of the Rocky Mountain Mineral Law Foundation, having served: as President in 2009-2010, among other offices; as a Member of the Board of Directors (f/k/a Executive Committee); as Program Chair for the 47th Annual Institute in 2001; and most recently as Chair of the Executive Director Search Committee. Walter has also served on a range of Foundation committees over time. He also has served as Chair of the Public Lands Committee (1995-97) of the American Bar Association section formerly known as "SONREEL". He has been listed in Best Lawyers in America, continuously since 1995 in Energy, Mining, Native American, Natural Resources and Oil and Gas Law, and in Chambers USA: America's Leading Lawyers for Business since 2004. Walter has written and presented numerous papers on a range of subjects in the areas of federal Indian law, energy, cultural resources management, and public land law, among others. A native Californian, Walter moved to New Mexico after receiving his undergraduate degree, a B.S. in Forestry (with honors), from the University of California at Berkeley, and his J.D. from Boston College Law School (cum laude). In addition to his legal practice, Walter is - among other things - a husband, father, hiker, mountain bike rider, and the Chair of the Board of Trustees of Albuquerque Academy, an independent day school in Albuquerque.

I. Introduction

Native American tribes, Pueblos and other groups (collectively referred to as "tribes") are important stakeholders in any energy development project located near Indian reservations, Indian lands, and in or near aboriginal lands which were occupied by Native Americans prior to the treaty-making era.² This paper will examine primarily the roles that tribes may play in the development of projects on federal public lands. This paper will consider: (a) consultation with tribes, tribal groups, and tribal members under the National Environmental Policy Act ("NEPA"),³ the National Historic Preservation Act ("NHPA") and its all important Section 106 process,⁴ the Native Graves Protection and Repatriation Act ("NAGPRA")⁵ and related statutory schemes; (b) sacred sites and religious freedom considerations; and (c) some practical recommendations for working with tribes, including the benefits of early coordination with tribal stakeholders, including tribal governments and tribal non-governmental organizations. This paper does not consider more generalized consultation policies, including (i) government-to-government consultation not arising from specific statutory obligations, (ii) the Department of the Interior's December, 2011 "Tribal Consultation Policy",⁶ or (iii) state law-based consultation obligations. Please consider that state agencies that may be involved in permitting projects on federal lands may also have requirements concerning consultation with tribes or other tribal and Native American interests.

While a tribe's interest and authority over a project on Indian lands or on that tribe's reservation may be greater than a project to be located off-reservation on federal public lands, a tribe's interest and role in an off-reservation project, particularly any project to be located near a tribe's reservation or land base, should be an important consideration requiring a project developer's careful attention.

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In this paper, the focus is on the rights, interests and concerns of federally recognized Indian tribes and related agencies, organizations and members. However, it is important to understand that there are other groups of Native Americans that are not recognized as tribes by the federal government. Some of those groups may be seeking federal recognition and some may not. In any event, while those unrecognized groups do not have the same consultation rights as recognized tribes, their interests should not be ignored. Appendix A to this paper is a summary table that outlines generally the tribal entities that should be consulted under the various statutes discussed in this paper. Of course, one should review applicable statutory and regulatory language to confirm consultation obligations.

II. Consultation with Tribes under NEPA, NHPA, and NAGPRA.

At the outset, in seeking to determine appropriate tribal consultation obligations that federal agencies may have, project proponents are encouraged to research applicable land management and permitting agency policies, manuals and handbooks, and consult with agency officials to ensure that proponents have access to not only the applicable laws and regulations, but also other policy guidance. For example, the U.S. Bureau of Land Management ("BLM") has BLM Manual and Handbook materials guiding tribal consultation concerning NEPA compliance, cultural resources management, and other matters.⁷ Even though some of these materials may not be binding on a project proponent, it is important that all understand what policies applicable federal agencies will follow in pursuing their consultation obligations.

A. Tribal Consultation under the National Environmental Policy Act.

While NEPA's reach extends far beyond cultural resources management considerations, it is important to recognize that NEPA requires consideration of such resources. Indian tribes are entitled to participate in the NEPA process, and federal permitting or land management agencies should invite tribes to participate early in project planning and NEPA scoping.⁸ As project proponents begin their discussions with applicable federal land management or permitting agencies concerning NEPA compliance and other permitting and regulatory requirements, consultation with Indian tribes should be high on the list of first steps. This is true even for off-Reservation projects, particularly those located close to reservation boundaries or to

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trust lands, given Indian tribes' wide-ranging relationships with lands outside current reservation boundaries.

NEPA's implementing regulations require federal agencies to invite Indian tribes to participate in the scoping process at the outset of the NEPA process, where a project may affect tribal interests.⁹ For projects on federal public lands, federal land managers should have a clear understanding of what tribes would have an interest in a proposed project or in particular areas by virtue of the land use management planning processes under the Federal Land Policy and Management Act ("FLPMA") for BLM, and under the National Forest Management Act ("NFMA") and related statutes for the U.S. Forest Service.¹⁰ Through their land use planning processes, BLM and the Forest Service would have gathered important information about tribal interests, and those agencies' land use plans can be useful resources for project proponents to review in order to begin to understand tribal rights and interests.

For any project being considered near an Indian reservation, near lands owned by an Indian tribe or its members, or in areas where an Indian tribe may have an aboriginal or other traditional or cultural connection, federal agency officials and project proponents are well advised to communicate early in the NEPA process with tribal representatives and other tribal interests. In referring to "other tribal interests", it is important to recognize that Indian tribes, as is true with other governments, do not always represent the full range of views held by tribal members. There may be local subdivisions of tribal government whose views, interests and concerns are different than those of the main tribal government. Similarly, there may be non-governmental organizations ("NGOs") representing the interests of tribal members which are also different than those of the tribal leadership.¹¹

While Indian tribes are not often referenced specifically in the Council on Environmental Quality's ("CEQ") NEPA implementing regulations, where tribes are participating in the NEPA process, beginning with scoping, it will be important to maintain ongoing communication and consultation with the tribe or tribes. Indian tribes can become "cooperating agencies" in the NEPA process "when the effects [of a project] are on a reservation" with the agreement of the lead federal agency.¹²

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Under NEPA, cooperating agencies can play an important role. CEQ. regulations provide that lead agencies "shall" (a) "request the participation of" cooperating agencies early in the NEPA process; (b) "[u]se the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise, to the maximum extent possible consistent with its responsibility as lead agency"; and (c) meet with cooperating agencies "at the latter's request."¹³ In turn, cooperating agencies have specified roles, including: (a) participating in the scoping process; (b) at the request of the lead agency, assuming responsibility for developing information and preparing environmental analyses for use in the NEPA documents; and (c) providing staff support at the lead agency's request in order to enhance the lead agency's "interdisciplinary...