J.11 Tribal Consultation
Standard Operating Procedures
1. The BLM has a responsibility to develop a government-to-government relationship with the tribes: the formal relationship that exists between the Federal Government and tribal governments under the laws of the United States. Tribal governments are considered dependent domestic sovereignties with primary and independent jurisdiction (in most cases) over tribal lands. Concerning proposed BLM plans and actions, at least the level of consideration and consistency review provided to State governments must be afforded to tribal governments.
2. The BLM is responsible for consultation under General Authorities defined as “laws, executive orders, and regulations that are not considered ‘cultural resource authorities’.” The regulations implementing both Federal Land Policy and Management Act and NEPA require Native American consultation. The American Indian Religious Freedom Act and the Indian sacred sites order (Executive Order 13007) pertain to the free exercise clause of the First Amendment—see BLM H-8120-1,General Procedural Guidance for Native American Consultation (BLM 2004d);, FLPMA Title II, NEPA Section 102; and 40 CFR 1501.2 and 1501.7.
3. Tribes must be consulted whenever other governmental entities or the public are formally involved in the BLM’s environmental review process in any NEPA documentation that entails public involvement or initial discussions with local or State governments—see BLM Handbook H-1790-1, National Environmental Policy Act (BLM 2008a).
4. NHPA Section 106 consultations for cultural resources that are significant to Indian tribes. Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes. The agency official shall consult with representatives designated or identified by the tribal government. Consultation shall be conducted in a manner sensitive to the concerns and needs of the Indian tribe. (36 CFR 800.2(c)(2)(ii)(C).
Best Management Practices
1. Notification is conducted by simple one-way written means. Consultation is generally construed to mean direct, two-way communication.
2. When publishing notices or open letters to the public indicating that the BLM is contemplating an action and that comments are welcome, managers shall send individual letters, certified mail or delivery confirmed to tribes requesting their input on actions being considered. If this is an opening dialogue, prior to having developed a strong working relationship with the tribe, if a timely response is not received the manager shall follow up with personal telephone calls.
3. For the benefit of both parties, managers are encouraged to strive for the most efficient and effective method of consultation. Whatever method is chosen, all consultation activities shall be carefully documented in the official record.
4. Consultation roles can be facilitated but may not be transferred to others. Cultural resource consulting firms working for land use applicants cannot negotiate, make commitments, or otherwise give the appearance of exercising the BLM’s authority in consultations.
5. Owing to their status as self-governing entities, tribes shall be notified and invited to participate at least as soon as (if not earlier than) the Governor, State agencies, local governments, and other Federal agencies.
6. Tribal consultation means dialogue between a BLM manager and an American Indian Tribe. The BLM managers are encouraged to visit tribal councils and appropriate tribal leaders on a recurring basis. This face-to-face meeting helps to develop relationships that can reduce the time and effort spent in later consultation or individual projects. This government-to-government consultation shall be treated with appropriate respect and dignity of position.
References
See Chapter 6 of this document for a comprehensive list of references.
BLM. 2004c. 8120 – Tribal Consultation Under Cultural Resources. Release 8-74. December 3, 2004. Washington, DC: U.S. Department of the Interior, Bureau of Land Management.
__________. 2004d. 8120-1 – General Procedural Guidance for Native American Consultation. Release 8-75. December 3, 2004. Washington, DC: U.S. Department of the Interior, Bureau of Land Management.
__________. 2008a. BLM National Environmental Policy Act Handbook H-1790–1. Washington, DC: U.S. Department of the Interior, Bureau of Land Management.