1. The Fly in the Ointment: Consultation Under Section 106 and Other Laws Related to Historic Preservation Peacekeeper Conference, 1985

2. 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

3. 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

4. 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

5. How do you know if you have the right communities? Competing interests Orser & Singleton experiences in Irish and African American communitiesIrish Factions within a single community Traditional vs. “progressive”

6. 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."

7. Specialized Training in Native American Consultation

8. 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. www.doi.gov/bureau-indian-affairs http://www.indians.org/Resource/FedTribes99/fedtribes99.html For a list of non-recognized tribes see http://www.kstrom.net/isk/maps/tribesnonrec.html. http://www.kstrom.net/isk/maps/tribesnonrec.html

9. 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) The Native American Consultation Database (NACD) geared toward NAGPRA, but good for other issues MAPS: GIS Windows on Native Lands, Current Places, and History 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 Indian Land Cessions in the United States is also an invaluable resource on historic Indian land areas. Consultants

10. 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.

11. 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 NPS/Effigy Mounds Cultural Affiliation project example Use networks and first hand contacts

12. 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

13. 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'The Powers That Be': Power, Role, and Interaction in the Consultation Process

14. Privileged information Belief 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 ResourcesGuidelines for Restricting Information About Historic and Prehistoric Resources Boiling Springs TCP, first TCP in Minnesota, sacred to the Dakota

15. 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.