Improving and Sustaining Tribal Relations

Improving and Sustaining Tribal

Relations

Implementing MS-1780 and H-1780-1

Long Course for Staff and Program Leaders

Bureau of Land Management

Washington Office (240)

December 10, 2017

Purpose of This Training

Provide brief background on the evolution

of Departmental tribal consultation policy

Review basic tenets of tribal relations as

expressed in the 1780 manual/handbook

Provide each state with training modules

that can be tailored to that state’s unique

needs

“Train the trainer”

What Is Tribal Consultation?

Consultation is the conduct of mutual, open, and direct two-way

communication in good faith to secure meaningful and timely participation in

the decisionmaking process.

Consultation is an accountable process that ensures meaningful and timely

input by tribal officials into the development of regulatory policies and agency

decisions that have tribal implications.

Government-to-government consultation takes place between BLM officials

with decisionmaking authority and elected tribal officials or those tribal

representatives specifically delegated by elected tribal officials to engage in

such consultation and decisionmaking. It is built upon the government to

government exchange of information and aims to create effective collaboration

and informed decisionmaking.

Meeting at a tribal headquarters.

Notification and Coordination Notification is a one-way form of communication that provides

information, data, or reports to tribes.

Coordination may be conducted with tribal representatives such

as Executive Directors or heads of tribal divisions of natural

resources, economic development, transportation, lands, or any

other personnel or officials who are recognized as representatives

by the tribes. The purpose of coordination is to 1) assist BLM in

assessing whether a particular action or decision may affect tribal

interests; 2) involve tribes early in the action and/or decision

development process to ensure meaningful tribal input; and 3)

assist BLM in determining where consultation with elected or

duly appointed tribal leaders may be appropriate.

Distinguishing Coordination from

Consultation

Coordination consists of communication and dialogue

between the BLM and Indian tribes involving staff

attempting to increase cooperation between the parties

and the effectiveness of their relationship.

Consultation is the process of identifying and seeking

input from appropriate tribal governing bodies,

considering their issues, and documenting the manner

in which input affected the specific management

decision(s) at hand.

Historic Context for Engagement with Tribes

For over two centuries, a complex body of

case law has established the meaning and

application of several legal concepts that

underlie BLM-tribal relations today. These

broad relations, including consultation, must

be carried out in accordance with 1) the

special legal status of federally recognized

tribal governments, 2) BLM’s Federal trust

responsibilities, and 3) tribal reserved rights.

Navajo Rock Art

Special Legal Status of

Federally Recognized Tribes

“Federally recognized tribes” means both federally

recognized tribal governments and Alaska Native regional

corporations.

The United States has a unique legal relationship with Indian

tribal governments set forth in the Constitution of the United

States, treaties, statutes, Executive Orders, and court

decisions.

The United States recognizes the right of Indian tribes to

self-government and supports tribal sovereignty and self-

determination.

These “tribes” enjoy government-to-government relations

with the United States federal government.

Special Legal Status (continued)

Tribal interests are not on equal footing with the

interests of most other groups and individuals with

whom the BLM interacts but rather have an elevated

status.

Sovereignty means that federally recognized tribes

have liberal control over civil and regulatory matters

among their members and within reservation

borders.

Tribes are considered distinct, independent political

communities within the United States’ borders, or

“domestic, dependent nations.”

Traditional Native American Leaders

Special Legal Status (continued) Trust Responsibility extends to the BLM. Trust

responsibilities are founded on the Constitution and are a

function of the unique legal doctrine that evolved as tribal

lands were consumed by the territorial expansion of the

United States and as promises were made by the Federal

Government to protect tribal interests.

For the BLM, this obligation requires a reasonable and good

faith effort to identify, consider, protect, and conserve

locations and resources important to Indian tribes including

those associated with treaty-reserved rights; and to carry out

programs in a manner sensitive to and consistent with Indian

tribal concerns and tribal government planning and resource

management programs.

Departmental Direction

The need to improve and modernize Bureauwide

guidance regarding tribal consultation developed in

response to a series of Secretarial Orders.

Departmental policies directed agencies to update

their manuals.

Consultation expanded from protecting trust

responsibilities to actively seeking opportunities to

work collaboratively with tribes in the management

of federal lands and resources.

Secretarial Direction to Improve Tribal Relations

Secretarial Order 3317

Department of the Interior Policy on Consultation With Tribes

December 1, 2011

Background

It resulted from a series of seven consultation meetings by a working

group of DOI officials and tribal representatives from across the nation

between December 2009 and January 2010 whose purpose was to

recommend new approaches to consultation.

DOI drafted a plan in February 2010 for developing comprehensive

Department-wide policy for conducting meaningful consultation.

The policy was developed by a joint DOI-Tribal team and sent to tribal

leaders for review.

Secretarial Order 3317 (continued)

Demonstrate a meaningful commitment

Create effective collaboration

Promote enhanced communication

Promote cooperation among agencies with

overlapping jurisdiction

Begin a process to upgrade manuals to

reference appropriate practices

Secretarial Direction (continued)


Reaffirmation of Federal Trust

Responsibility to Federally Recognized

Tribes

August 20, 2014

SO 3335 Guiding Principles

Principle 1: Respect tribal sovereignty and self-

determination, which includes the right of Indian

tribes to make important decisions about their own

best interests

Principle 2: Ensure to the maximum extent possible

that trust and restricted fee lands, trust resources, and

treaty and similarly recognized rights are protected

Principle 3: Be responsive and informative in all

communications and interactions with Indian tribes

Principle 4: Work in partnership with Indian tribes on

mutually beneficial projects

Mutually Beneficial Projects

SO 3335 Guiding Principles (continued)

Principle 5: Work with Indian tribes…to avoid or resolve

conflicts to the maximum extent possible in a manner that

accommodates and protects trust and restricted fee lands,

trust resources, and treaty and similarly recognized rights

Principle 6: Work collaboratively and in a timely fashion

with Indian tribes…when evaluating requests to take

affirmative action to protect trust and restricted fee lands,

trust resources, and treaty and similarly recognized rights

Principle 7: When circumstances warrant, seek advice from

the Office of the Solicitor to ensure that decision impacting

Indian tribes…are consistent with the trust responsibility

Secretarial Direction (continued)


Identifying Opportunities for Cooperative

and Collaborative Partnerships with

Federally Recognized Indian Tribes in the

Management of Federal Lands and

Resources

October 21, 2016

Secretarial Order 3342Activities Subject to Collaboration

Delivery of specific programs and services

Management of fish and wildlife resources

Identification, protection, preservation, and

management of culturally significant sites,

landscapes, and resources

Geoglyph Culturally Sensitive Site

Secretarial Order 3342Activities Subject to Collaboration (continued)

Management of vegetation, including collection of

botanical materials

Management and implementation of maintenance

activities

Management of information pertaining to tribal

cultural and educational materials

Heritage Education Joint Efforts

Context for Development of 1780 Guidance

A major factor contributing to the establishment of a

more comprehensive approach to tribal relations

was the process of updating the BLM’s national

programmatic agreement (PA) defining how it

meets its responsibilities under Section 106 of the

NHPA.

The BLM’s original national PA was executed in

1997. As a result of legal and regulatory changes,

the ACHP requested that the accord be updated.

Context for Development of 1780

Guidance (continued)

To aid in this updating process, the BLM in 2008

and 2009 hosted a series of eight regional tribal

consultation listening sessions across the West.

Tribes provided input on how consultation

procedures and policies were working and

suggestions for improvements.

An important conclusion was that Indian leaders

desired a more comprehensive approach towards

tribal relations, since Indian concerns are broader

than the cultural heritage program.

Context for Development of 1780

Guidance (continued)

Additional tribal consultation in 2010 and

2011 regarding revisions to the PA

confirmed tribal interests well beyond the

cultural heritage program.

Coming out of the PA listening sessions was

an agency commitment to achieve greater

consistency and effectiveness in tribal

consultation practices.

Tribal Members Participating in Meeting

Approach of MS-1780

Appears within the 1700 manual series because this manual guides

relations with other governments, an acknowledgement of the

government-to-government relationships with Indian tribes

Outlines a consolidated and coordinated approach to tribal consultation

involving multiple BLM program areas, while encouraging establishment

of ongoing, lasting relationships

Helps BLM managers improve working relationships with tribes on such

issues as resource planning, training, employment, collaborative resource

management, and economic development tied to minerals

Guides BLM to build long-term partnerships with tribes based on

common interests in managing and protecting lands and resources

Provisions of MS-1780—Chapter 1

Responsibility-Section 1.4. This is an

expansive section with duties and obligations

for tribal relations enumerated for:

Director and Deputy Directors

Assistant Directors

Tribal Liaison Officer

State Directors and Associate State Directors

District Managers and Field Office Managers


(continued)

Responsibility—continued

State, District, and Field Tribal Liaisons

Project Managers

Land Use Applicants

Consultation Roles and Responsibilities

State Directors and Line Officers (Federal Officials)

Are authorized to speak for the BLM and have

delegated project-level decisionmaking authority

Attend meetings with elected tribal representatives

as part of government-to-government consultation

Ensure that land use authorizations reflect tribal

consultation and input when feasible, explain BLM

decisions to tribes, and provide opportunities to

tribes for follow-up participation such as monitoring

or reclamation

Consultation Roles and ResponsibilitiesStaff Roles and Responsibilities

All staff (including tribal liaisons and resource specialists):

Advise line management of possible effects of proposed

agency actions and identify potential courses of action

Interact with their counterparts on tribal staffs

Communicate issues and concerns raised by tribes’

representatives

Communicate with tribal staff to provide information and

gather and articulate concerns expressed regarding proposed

land management actions

Ensure tribal issues and concerns are considered and

addressed in the NEPA review process


Third Party Roles

Appropriate role of applicants or their contractors

will be determined by BLM line managers and the

tribes, based on BLM-tribal consultation

Applicants and their employees may not assume any

functions that constrain BLM decisionmaking or

conflict with inherently governmental functions


Third Party Roles (continued)

May assist the BLM in administrative support

activities by:

-gathering and analyzing data

-preparing reports

-arranging meetings or facilitating field trips

-managing compilation of data and records

Cannot negotiate, make commitments, or give the

appearance of exercising the BLM’s authority in

consultations


MS-1780 Policy—Section 1.6. Policy commitments are articulated in

detail. They address a broad range of topics:

The BLM commits to building and sustaining ongoing relationships with

Indian tribes. The relationship is based upon consultation regarding

planning, project-specific issues, and long-term personal and institutional

relationships resulting from collaborative and cooperative programs of

mutual interest.

Such collaborative programs include education and employment

opportunities; joint training; and the management of natural and heritage

resources.

The agency pledges to create an open and ongoing dialogue—not dictated

solely by immediate needs and issues. Such engagement does not terminate

with a specific decision or authorization.

Education Programs in Natural Sciences

MS-1780 Policy (continued)

Recognizes a broad trust responsibility—including treaties

Allows for compensation to tribes on a case-by-base basis for

contributions of information into decision-making processes.

The BLM may require that proponents provide such funding

or the BLM itself may allocate such funding. This topic will

be discussed in more detail later in the program.

Provides more flexibility for reburial of human remains and

cultural items on public lands

Clarifies that BLM will explain how tribal input affected final

decisions in NEPA documents. Where BLM was not able to

accommodate tribal requests, a clear explanation will be

provided for why this was not possible.

Reburial of Human Remains


Requires that performance measures related

to tribal consultation ensure accountability

Requires adequate staff to carry out tribal

relations policies

Mandates adherence to BLM’s cost

management structure when charging time

engaged in tribal consultation


Compensation

Let’s look at the issue of compensation more

closely.

New policies and procedures regarding tribal

compensation are established within Chapter

1, Section 1.6 of MS-1780, and Chapter II

and Appendix 2 of H-1780-1.

MS-1780 Policy (continued)Compensation

Compensation may be provided to tribes on

a case-by-case basis for contributions of

information into the decisionmaking

processes.

The new policy allows for compensation but

does not mandate it.


BLM may utilize its own appropriated funds or cost

reimbursable accounts to reimburse tribal members for travel

expenses to attend meetings in connection with NEPA,

FLPMA, or the NHPA Section 106 processes or time taken

to discuss proposed projects, heritage resource site

management, or traditional use areas.

Because the availability of funds to provide for compensation

will likely be limited, such compensation is more

appropriately viewed as an honorarium rather

than hourly or daily salaries.


Actions/Undertakings for which compensation may be

provided include:

Large-scale undertakings initiated by outside

parties, requiring an EIS

Small-scale undertakings initiated by outside

parties, usually analyzed and approved with EAs

BLM-initiated projects (new RMP, RMP updates,

BLM-instigated developments)


A format is provided for agreement documents

establishing compensation for BLM-initiated

projects in Appendix 2 of H-1780-1.

Suggested maximum amounts of compensation

per project are:

o New RMPs—up to $1,000 per tribe

o RMP Updates—up to $500 per tribe

o BLM-instigated developments—up to $500 per

tribe


It is important to remember that when the BLM concludes that

compensation is appropriate:

Tribal governments will be responsible to distribute funds to

individual tribal members who have participated.

Individual tribal members including tribal representatives

make their own travel arrangements.

Federal government per diem rates do not apply.

The BLM will not require receipts from tribal members

before payment of compensation may be made.

Tribal representatives are responsible for their own taxes.

MS-1780 Chapter 2BLM Relationship to Tribal Governments, Individuals,

and Non-Federally Recognized Groups

Chapter articulates BLM’s relationship not

only to federally recognized tribes but also to

Indian individuals and nongovernmental tribal

groups and communities that are not federally

recognized. Such obligations arise when:

MS-1780—Chapter 2 (continued)

Protecting religious observations under

AIRFA and Sacred Sites EO 13007

Identifying lineal descendants for purposes

under NAGPRA

Considering concerns expressed by members

or other Native Americans that are

independent of a government

MS-1780—Chapter 2

Initiation of contacts with tribal members must be

coordinated by BLM line officers through tribal

officials.

If tribal elders or administrative committees offer

information or opinions that differ from those

provided by official tribal representatives, the

consultation administrative record shall clearly

identify the official tribal perspective and treat other

comments as those of non-governmental

individuals.

Fallon Tribal Government Leadership


Individual Indians and nongovernmental tribal groups also have

rights and privileges:

AIRFA affirms the constitutionally guaranteed freedom to

follow the religion of one’s choice for all Native Americans,

regardless if members of a federally-recognized tribe.

EO 13007 protects access to, ceremonial use of, and

physical integrity of sacred sites utilized by Indians,

regardless if they are members of a federally recognized

tribe.

NAGPRA empowers lineal descendants to claim human

remains and cultural items.

MS-1780 Chapter 3—Program Relationships

This chapter explains:

How tribal relations inform decision making and program

management, including inventories, cooperating agency

status, consistency review, special designations,

documentation, agreements, and environmental justice

Though tribal issues and concerns may surface through staff

to staff contacts discussing existing or ongoing inventories

and ethnographic fieldwork or through other written

communications, they are ultimately resolved through

government-to-government consultation.


The relationship to State and Local governments

Because of their status as self-governing entities,

tribes should be notified to participate in

decisionmaking processes at least as soon as (if not

earlier than) the Governor, State agencies, local

governments, and other Federal agencies.

In recognition of the sovereignty of federally-

recognized tribes, the government-to-government

relationship requires that the BLM accord tribal

officials the appropriate respect and dignity of

position.

MS-1780 Chapter 3 (continued)

The importance of tribal coordination and

consultation to a wide variety of BLM

programs, including: cadastral survey,

cultural resources, fire and aviation, forestry,

land and realty, mineral, procurement,

rangeland and plant conservation, recreation,

renewable energy, soil, water, and air,

wildlife and fisheries, and wilderness

Plant Identification with Tribal Members

MS-1780—Appendix 2

Judging the Adequacy of Tribal Consultation

This Appendix provides guidance to

managers so they can evaluate the adequacy

of their tribal consultation efforts.

BLM line managers should devote time and

resources to consultation commensurate with

the following factors:

MS-1780—Appendix 2

Judging the Adequacy of Tribal Consultation (Continued)

Scope and complexity of proposed land use

Availability of alternatives that would reduce or

eliminate potential harm or disruption

Completeness and appropriateness of the list of

Indian tribes and individuals with whom

consultation has already been documented

Nature of issues raised

MS-1780—Appendix 2Judging the Adequacy of Tribal Consultation (Continued)

Intensity of concern expressed

Legal requirements posed by treaties, if applicable

Potential to resolve issues through further

discussions and

Need for further consultation

MS-1780—Appendix 2Judging the Adequacy of Tribal Consultation

(Continued)

Sufficient Consultation. Federal district and appellate

court cases and IBLA decisions provide the clearest

review of an agency’s obligations towards tribal

consultation under the NHPA. These legal opinions

likely shed light on how courts would judge the

adequacy of consultation efforts under other legal

statutes as well.

Sufficient consultation and decisionmaking benefitted

from:


A pattern of numerous and repeated efforts to

engage in consultation through various means of

communication, even when the tribe did not

respond

A pattern of regularly scheduled consultation

meetings with tribes

Early engagement to allow maximum contribution

from tribes, when the agency has the maximum

flexibility and before any alternatives have been

finalized


Communication through a variety of mediums,

including face-to-face meetings, telephone

conference calls, notices, shared documents, field

trips, and site visits

Direct involvement of BLM line officers and

elected tribal officials in consultation

A process that afforded tribes a reasonable

opportunity to identify their concerns, provide input

on the project impacts, and participate in devising

mitigation measures


The opportunity for tribes to conduct on-site

inspections of projects and potentially affected

resources

Documentation that the agency obtained and

considered tribal input and that final decisions took

that input into account, and

Continuation of dialogue after initial authorizations

and the involvement of tribes in monitoring,

mitigation, and reclamation activities

Joint Environmental Reclamation Activities


Fatal Flaws. In judicial rulings critical of agency

consultation efforts, failings have been identified:

Initiation of consultation with tribes late in the

planning/decision process

Failure to fully share all relevant information with

tribes

Meetings and communication that were of an

informational nature, rather than two-way

communication designed to obtain and consider

tribal views and recommendations and


Consultations restricted to individual tribal members or

meetings limited only to BLM and tribal staff, rather than

government-to-government consultation between elected

tribal representatives and the designated representatives of

the United States

Conclusion: The sufficiency of consultation will be viewed

holistically by the courts; it is the sum of the consultation

effort that determines its adequacy, not individual steps in the

consultation process. That consultation effort must include

identification, notification, tribal input, and follow-up.

[Possible Exercise Here on Adequacy of Tribal Consultation]

MS-1780—Appendix 3Tribal Liaison Position Description

Appendix 3 provides a model Position Description for Tribal

Liaison positions.

Newly created positions should utilize this guidance

customized to local conditions.

Supervisors of existing Tribal Liaison positions should, at the

next annual performance review, update and modify current

PDs to make them as compatible as possible with the duties,

responsibilities, and factors enumerated within Appendix 3.

Approach of H-1780-1

The handbook title reflects the BLM

emphasis on building, improving, and

sustaining personal and institutional

relationships with tribal leaders and

governments.

The guidance immediately tackles key issues

that must be addressed if the BLM will be

successful in building such partnerships.


Such key issues include:

1) confidentiality of sensitive information

2) tools to develop collaborative land

management

3) financial support for tribes

4) accountability for tribal consultation


The handbook features many sidebars describing

successful agreements with tribes, approaches to

maintain confidentiality, partnerships, and creative

approaches towards consultation.

Users of the handbook are encouraged to contact

the BLM offices mentioned in the text to obtain

copies of the cited documents and to discuss the

applicability of the original approach to current

conditions elsewhere.

H-1780-1 Chapter IIBuilding and Maintaining Relationships

This chapter presents numerous tools and strategies that can

help offices build or improve tribal relationships and which

aid in fostering collaborative efforts for mutually desirable

land management goals. Best practices that help build and

sustain relationships with tribes include partnerships based on

common interests, financial support, confidentiality, and

accountability.

Chapter II of this Handbook shifts our tribal consultation

paradigm from narrow legal compliance needed to approve

individual actions to a broader perspective of open-ended and

ongoing relationships with tribes, where common ground can

be found as a basis for public land management.

H-1780-1 Chapter II

The purpose of this section of the handbook is to

elaborate upon tools and strategies that can be

explored in order to develop and expand ongoing

working relationships between the BLM and its

tribal neighbors.

By expanding employment and procurement

opportunities, developing common staff training

courses, and supporting mutual goals in heritage

education, tribes and the BLM can discover

common ground and strengthen pathways of

communication and understanding.

Heritage Education Programs

H-1780-1 Chapter II (continued)

Confidentiality. This section explains the extent

to which the BLM can protect sensitive

information under the provisions of:

Federal Advisory Committee Act (FACA)

Freedom of Information Act (FOIA)

Archaeological Resources Protection Act

(ARPA)

National Historic Preservation Act (NHPA)

[Possible Exercise Here Regarding Confidentiality]

H-1780-1 Chapter II (continued)Confidentiality

Let’s look at the issue of confidentiality in more detail.

The protection of sensitive information shared with

the BLM is such a high priority for tribes that

confidentiality is the first major issue discussed in

Chapter II of the handbook.

Absolute protection of sensitive information cannot

be guaranteed. However, significant restrictions on

the release of this information can be provided by

the following:


Offices must have physical and procedural means to

secure sensitive information .

Extremely sensitive information and maps can be

treated as confidential working files with limited

internal access.

FACA—Federal Advisory Committee Act

requirements for open meetings do NOT apply to

tribal consultation involving only Federal and tribal

representatives because of exemptions for

intergovernmental consultation.

H-1780-1 Chapter II (continued)Confidentiality and FOIA

Freedom of Information Act (FOIA)

To what extent can FOIA compel or protect

the release of sensitive information provided

to the BLM by tribes during consultation?

Extent to which sensitive tribal information

can be protected as confidential depends

upon the degree to which the data fit within

one of FOIA’s disclosure exemptions.


Exemption 3—protects from disclosure matters “specifically

exempted by statute”

Regulations implementing the Archaeological Resources

Protection Act (ARPA) require protection from disclosure

information about “archaeological resources.” If information

provided from tribes relates to an archaeological resource

(material remains of past human life or activities which are

of archaeological interest and are at least 100 years of age), it

is protected.

Only applies to public surface

Three Rivers Petroglyph Sacred Site


If a State’s governor requests the

information, the agency must provide it and

then state statutes governing disclosure or

protection of such information would govern

its protection from that point forward.

The National Historic Preservation Act

(NHPA) also appears to be a withholding

statute under FOIA.


NHPA allows agencies to protect sensitive

information if its disclosure would: 1) cause a

significant invasion of privacy, 2) risk harm to the

resource, or 3) impede the use of a traditional

religious site by practitioners.

In order to withhold sensitive information under the

NHPA, the BLM would first have to determine that

the information pertains to a historic property (one

that is on or is eligible for listing on the National

Register of Historic Places).


Exemption 6—protects from disclosure “personal and

medical files and similar files the disclosure of

which would constitute a clearly unwarranted

invasion of personal privacy”

Information regarding sacred sites is often viewed

by tribes as deeply personal. It may be limited to

clans, orders, societies, or even individuals within

the tribe.


Tribes often feel that disclosure of such

information compromises and endangers

the sacred qualities of the site. Circulation

of such information lessens the privacy

necessary for use and visitation by tribal

members of the location.


Trade Secrets Exemption—applies to trade secrets and

commercial or financial information that is

privileged or confidential

An example of the application of this exemption

comes from an agreement signed between the BLM

Vale District in Oregon and the Confederated

Tribes of the Umatilla Indian Reservation.

Tribes inventoried culturally important plant

species and modeled potential habitats for them.


Both the plants and the model were considered to be

trade secrets because a) they consist of information

that is secret, b) this information has economic

value, and c) tribes have made a reasonable effort to

keep this information and knowledge secret.

So, the parties agreed that this information would

not be subject to disclosure under the trades secret

exemption in FOIA.


FOIA Conclusion

Remember—if a tribe submits information under a

claim of protection, the BLM can assert an

applicable privilege for, and seek to protect, that

information from public disclosure.

While these privileges are initially asserted by the

BLM, a challenge to an assertion of privilege may

ultimately be resolved by the Federal judiciary if a

decision is challenged in court.


Other Strategies to Consider:

State Adopted Version of the 1979

Uniform Trade Secret Act and the 1974

Privacy Act

Jointly develop database but house them in

tribal offices

H-1780-1 Chapter II (continued)Strategies are presented by which management and staff can build broad-based

relationships:

1) Becoming more knowledgeable about tribes, their leaders, and

communities;

2) Establishing and maintaining personal relationships;

3) Exploring collaborative land management opportunities through:

Self-Determination Contracts and Self-Governance Funding agreements

Partnership opportunities in such programs as fire and aviation; cadastral

survey; and heritage resources management

4) Developing business relationships with tribes based on various procurement

vehicles

5) Expanding employment opportunities for tribal members

6) Supporting tribal educational opportunities for tribal youth

7) Extending BLM training courses to tribes within the region

American Indian Hot Shot Crew


Self-Determination Contracts and Self-Governance

Funding Agreements

Contractible BLM programs include Indian

minerals and the field survey portion of cadastral

surveys.

Field offices are encouraged to identify and

publish in the Department’s annual Federal

Register Notice any programs, function, services,

and activities that self-governance tribes can

assume.


Fire and Aviation Program

The Fire and Aviation Directorate regularly

partners with tribes and other agencies to

maximize initial fire attack.

Fuels Management Program focuses on

protecting communities and natural and

heritage resources while providing for local

economic opportunities.


Cadastral Survey

The BLM Cadastral Survey Program has

established strong relationships with the

BIA’s Real Estate Services and Office of

the Special Trustee of American Indians

for the purpose of providing cadastral

services on Indian trust lands.


Heritage Resources Management

Opportunities include:

Building tribal capacity for the identification,

evaluation, and protection of sacred sites in

furtherance of the Inter-Agency MOU on the

Protection of Indian Sacred Sites (2012)

Developing agreement documents to utilize tribal

expertise regarding stabilization, patrolling,

interpretation, or heritage education tied to

culturally sensitive sites and areas

Protection of Culturally Sensitive Locations


Procurement Opportunities with Tribes

Small Disadvantaged Businesses [8(a)]apply to many tribes.

1910 Buy Indian Act allows the purchase of products from

Indian Country.

Opportunities for tribes derive from their status as Not-for-

Profit organizations.

BLM may require land use applicants to obtain information

from tribes needed to fulfill its NEPA or NHPA requirements

or the BLM itself may contract or pay for tribes and Indian

individuals to produce reports.


Employment Opportunities

Local personnel offices can expand opportunities to

hire native Americans by utilizing authorities that

facilitate advertising for and recruiting Indian

employees, including:

ANILCA Section 1308. Authorizes the hiring of

individuals with specialized, localized knowledge

or expertise in Alaska

Tribal Members Employment in Fire Fighting


Expand internship programs Native American and

Alaska Native hires, such as:

Intern Not-to-Exceed hiring authorities

Schedule D BLM Career Intern hiring authority

Schedule D BLM Recent Graduates authority

DOI Secretarial Direct Hire Authority of

Resource Assistant Internship

Public Lands Corps Special Hiring Authority


Education Opportunities

Seek out partnerships with Indian educational

institutions to assist in development of curricula or

implementing cooperative education programs.

Project Archaeology—develop tribally-relevant

curricula and lesson plans

Online and Distance Learning Programs– offer

certificates in natural and heritage resource

management

Alaska Native Student Interns


Develop Joint Training

Invite tribes to attend and participate in BLM training

courses related to NEPA, ROW, cadastral survey, and

heritage resources

Sponsor tribal staff to attend training at NTC

BLM staff attend tribal trainings where available

Co-host workshops with tribes concerning tribal

relationships, traditional cultures, and consultation

Extend invitations to tribal political and cultural leaders to

address BLM offices as part of Native American History

Month activities

H-1780-1 Chapter IIITribal Consultation General Considerations

This chapter addresses the general mechanics of

consultation:

(1) with whom do you consult,

(2) appropriate BLM representatives,

(3) timing,

(4) execution in-person, through mail, and emails,

(5) how much consultation to do,

(6) proper documentation, and

(7) conclusion of consultation

H-1780-1 Chapter III (continued)

Remember: Consultation regarding BLM decision-

making always includes these obligations:

Identifying appropriate tribal governing bodies and

individuals from whom to seek input

Conferring with appropriate tribal officials and/or

individuals and asking for their views regarding land

use proposals or changes in rules or regulations,

policies and initiatives, or other pending BLM

actions that might affect tribal cultural practices,

economic development, access to valued locations,

or other aspects of tribal life

H-1780-1 Chapter III (continued)

Treating tribal information and preferences

as a necessary factor in defining the range

of acceptable public land management

options

Creating and maintaining a permanent

record to show how tribal information was

obtained and used in the BLM’s decision-

making process

H-1780-1 Chapter III (continued)Identifying Tribes and Other Parties for Consultation

Individual Tribes

Focus on tribes known to have concerns about the

geographic area under consideration and the

particular resources and/or land uses involved

Nonresident tribes with historic ties to the area

should be given the same opportunity as resident

tribes to identify their contact persons and express

their issues and concerns regarding the public lands.

H-1780-1 Chapter III (continued)Identifying Tribes and Other Parties for Consultation

Points of Contact within Tribes

For each tribe, BLM offices should develop and maintain current

lists of:

Tribal officials (Chairperson, President, Council Members,

etc.)

Tribal Staff for specific programs and issues (energy

development, natural resources, land, cadastral survey,

economic development, THPO)

Lineal Descendants (for purposes of NAGPRA, lineal

descendants of named Native American individuals have

legal priority for repatriation or transfer of human remains,

funerary objects, and sacred objects)

Repatriation of Remains

H-1780-1 Chapter III (continued)Consultation Meeting Mechanics

Face-to-Face Meetings

Best use of such meetings is for:

Annual briefings provided to tribal councils regarding major

ongoing and foreseeable actions and programs

Consultations regarding RMPs, EISs, land tenure

adjustments, other major undertakings, or in responses to

controversies

When tribal feedback is needed to define what they consider

to be “Departmental Actions with Tribal Implications” as

stated in the Secretary’s Policy on Tribal Consultation


Regularly Schedule Meetings Provide Opportunities

for:

BLM to explain actions planned for the coming

year or that are foreseeable

Tribes to identify proposed actions or

geographical areas of concern that it would like to

be consulted about in the future


Regularly Scheduled Meetings (continued)

BLM and the Tribe to agree to follow expedited

or tailored consultation procedures

Tribes to identify persons it recognizes as

traditional leaders or religious practitioners and

specific proposed actions or geographical areas

for which these individuals should be consulted


Make Consultation Meetings Convenient

Avoid setting up meetings in locations where it

would be difficult for tribal members to attend

If possible, schedule meetings on or near tribal

lands

Be cognizant of tribal calendar and major events

and plan meetings accordingly


Meeting Etiquette

Work with tribes to prepare agendas that address

both tribal and agency concerns

Distribute meeting information for tribes in advance

Ask tribal leadership if they wish to have

appropriate tribal staff open and close the meeting

(often with a prayer)

Be patient, especially if the meeting with a tribal

council includes additional agenda items or follows

no fixed schedule


Meeting Etiquette (continued)

If the BLM is hosting, allow time at the beginning to

introduce participants and their roles

Gifts and food may be important parts of cultural

exchange. Respectfully accept any offering and

provide food to the extent allowed by BLM ethic

guidance

Be clear what the BLM is doing and why and set

realistic expectations for what the BLM can, and

cannot, do


Meeting Etiquette (continued)

Be respectful, professional, and polite: use titles not

first names; turn off cell phones; never interrupt a

tribal speaker; frame questions tactfully

Listen actively and ask questions

Request permission before taking any photographs

Silence is OK and quiet moments are expected

Clarify how notes will be taken and distributed to all

parties afterwards


Lack of Tribal Response

Government-to-government consultation

authorities do NOT require participation by

Indian tribes nor do they require feedback within

specific timetables.

Even if no response is received, the BLM must

still make additional reasonable efforts

periodically throughout the planning process to

repeat invitations to consult.


Lack of Tribal Response (continued)

If no response is received within 60 days, BLM

manager or his/her designee should follow up

with emails and/or personal telephone calls to

tribal officials.

This should be done as part of g-t-g consultation

at least for those NEPA actions where a public

scoping process occurs.


Lack of Tribal Response (continued)

Offices should use a variety of means of

communications in an attempt to consult.

The BLM will utilize written correspondence,

emails, telephone calls, faxes, and face-to-face

discussions if possible to demonstrate a wide-

ranging and sustained effort to communicate.

When a tribe is unresponsive, the BLM needs to

carefully document its efforts to engage with the

tribe.


Lack of tribal Response (continued)

Lack of tribal response may be due to:

--sensitivity of the issues

--reluctance to divulge specific information until

later in the process

--mislaying BLM correspondence

--delegating response to tribal staff who was out of

the office

--schedule of council meetings not coinciding with

schedule for BLM feedback


Approaches to Contentious Meetings

If it is anticipated that the meeting could be

contentious, consider the following strategies:

Provide detailed draft agendas in advance and

finalize the topics and issues to be discussed

Use facilitators through the Department’s Office of

Collaborative Action and Dispute Resolution

Hire a court reporter to make a transcript

H-1780-1 Chapter IVTribal Consultation in Planning and Decision Support

Addresses consultation needed in land use planning and

decision support, summarizing BLM obligations under the

FLPMA, NEPA, EO 13175 Consultation and Coordination

with Indian Tribal Governments, the American Indian

Religious Freedom Act (AIRFA), and EO 13007 Indian

Sacred Sites

Places emphasis on NEPA Sec. 102 (Human environment)

Consultation is needed when agency actions may affect tribal

interests

Begin consultation with tribes prior to the public scoping

process

H-1780-1 Chapter IV (continued)

Offer field trip(s) where needed

Tribes are exempt from FACA

Inform tribes how consultation input affected

final decisions

Involve tribes in post-decision actions

(monitoring, reclamation, etc.)


Key differences among the legal mandates are

highlighted

How to coordinate tribal consultation obligations

under these legal authorities

Use of ethnographic studies for planning purposes


Tribal consultation is especially important and

productive during FLPMA and NEPA processes

because these allow the flexibility to identify

culturally important places and to devise

management practices and restrictions that can

protect and accommodate tribal use.

Under FLPMA during new RMP development or

updating, tribal consultation can identify important

sacred sites and areas of traditional use.


The development of Heritage Resources Project Plans (HRPP), formerly referred to as Cultural Resources Project Plans within the old 8100 manual system, might establish protection of traditional plant resources and non-commercial harvest at certain times of the year.

Other HRPPs have protected culturally significant clay and mineral gathering areas.

Likewise, the NEPA process, for example, may result in Special Stipulations to lease areas or even APDs that restrict noise and traffic at certain times of the year in specified geographical locations subject to ceremonial use.

Harvest of Indian Rice Grass

H-1780-1 Chapter V through Chapter XIV Program-Specific Guidance

Program-specific chapters:

Highlight legal authorities driving consultation

and tribal relations for that program

Explain special considerations applicable to that

program

Identify potential partnerships or agreements with

Indian tribes

H-1780-1 Chapters V through XIV (continued)

National Conservation Lands (Chapter V)

NCL Collaborative approach intended to (1) establish sense of

shared stewardship; (2) attract volunteers; (3) engage youth;

(4) build diverse partnerships

W&S Rivers often cross jurisdictional boundaries

Scenic & Historic Trails may follow ancient routes and

intersect habitats

Identify partners to perform trail inventory and related

monitoring

Allow traditional practices in NCL units including non-

commercial collecting of natural materials & access to sacred

sites

Tribal participation in NCL scientific research projects


Fire Management (Chapter VI)

Collaboration fuels reduction, emergency stabilization, rehabilitation

Tribal Forest Protection Act of 2004 – stewardship contracts to tribes for

management on BLM lands abutting reservation to protect trust resources

from fire hazards, disease, and other threats

Grants for restorations of vegetation communities containing culturally

important plants & protection of sacred sites

Fire crew hiring/training to meet certification standards

Forest and Woodlands (Chapter VII)

Access to variety of forest products for subsistence and ceremonial needs

Planning to accommodate traditional gathering

Tribal Forest Protection Act of 2004 – reduce threats from Federal lands

including reduction of fire danger to tribal forests

Stewardship contracts and agreements for: (1) setting prescribed fires; (2)

road maintenance; (3) vegetation removal; (4) noxious weed control; (5)

watershed restoration & maintenance; (6) habitat management

Mescalero Helitack Crew

Pinon Nut Harvest in Woodlands


Rangeland Management (Chapter VIII)

Range health evaluations including monitoring data collection

Range improvement structures & vegetation treatments

Develop list of resource objectives

Fish and Wildlife (Chapter IX)

Establish protocols for mutual exchange of species and habitat

information including traditional ecological knowledge of the tribes

Ensure confidentiality of tribal information through agreements

Collaboration in expanding tribal wildlife programs where needed

Establish law enforcement agreements for protection of wildlife

Collaboration in development of habitat management plans and

prioritizing improvement projects

Establish partnership in wildlife and habitat monitoring and data

collection

Weed Control Activities


Cultural Heritage (Chapter X)

Establish monitoring agreements to inspect the condition of culturally

sensitive sites

Tribes may execute user agreements where states control access to and

use of inventory and site data housed in a common repository.

MOUs to define: (1) types of undertakings tribes wish to consult on; (2)

identify geographical areas of interest; (3) types of properties tribes wish

to consult and protect; (4) data sharing procedures; (5) how contacts

should be made; (6) when contacts are appropriate; (7) who serves as

contact points; and (8) in what manner should communication be made.

Agreements that clarify and streamline consultation and coordination and

encourage cooperative activities on public lands.

Facilitate arrangements for tribal monitors with the land use applicants

Lineal descendants and Indian tribes may ask to rebury recently

discovered Native American human remains and funerary objects on the

public lands.

Navajo Stabilization Crew


Minerals (Chapter XIII)

Coordinate actions related to Indian Trust Minerals Management

Monitor program for Indian leases for production, verification,

inspection, and enforcement to ensure diligent development

Monitor for mineral trespass situations

Cadastral Survey (Chapter XIV)

Collaboratively assess the need and priority for boundary evidence to

support trust asset transactions, boundary conflicts, trespass issues,

unauthorized use incidences, and clarify land descriptions

Utilize BILS positions placed in BIA regional offices to identify tribal

survey issues and provide on-site assistance

Provide cadastral survey training to BIA employees and tribal members

BLM partner with Certified Federal Surveyor to address trust asset

boundary needs

Joint priority setting of tribal needs based on risk level situations

Native American and BLM Cadastral Survey Crews

H-1780-1 Improving and Sustaining BLM-

Tribal Relations

Potential Future Chapter Additions:

Chapters are currently reserved for the Fluid

Mineral and Realty Programs.

Handbook will be updated periodically with

additional program direction within their

applicable chapter.

This will facilitate keeping the handbook current

without withdrawing it in its entirety.

1780 Roles and ResponsibilitiesPoints to Remember

Authorized officers carry out tribal consultation for

the BLM under Departmental delegations of

authority on behalf of the Secretary of the Interior.

The entire leadership team of the BLM (Director,

Deputy Directors, Assistant Directors, Tribal Liaison

Officer, State Directors, and Associate State

Directors) share responsibility to insure

comprehensive and effective tribal consultation.


District managers and field office managers (line

officers) are the key to effective, positive, and long-

term relationships with Indian tribes affected by

BLM land management decisions.

State, District, and field office staff provide accurate

information and advice to management regarding

opportunities to consult and/or partner with tribes

regarding land use planning, land use authorizations,

and program actions.


The responsibilities for carrying out effective

consultation with tribes is shared by all programs

and across each office’s table of organization.

The goal is not to focus merely on input into

specific decisions; rather, the BLM strives to

establish open, on-going, and long-term

partnerships with tribes in areas of mutual interest

for the betterment of public land and resources

management.

1780 CommunicationsPoints to Remember

Consultation is conducted by designated Federal and tribal officials.

Coordination may be conducted through staff-to-staff interactions, contractors with tribes, etc.

Effective consultation is often based on long-term, personal relationships.

The BLM seeks to develop two-way information exchanges and communications.

Field offices shall establish line officer and tribal leader contact and rapport, in-person.

The agency will incorporate tribal information into discussions.

1780 CommunicationsPoints to Remember

Learn communications preferences

Allow extra time for meetings

Help the tribe understand the purpose of the

consultation effort

Demonstrate respect for all tribal members and

their opinions and outlooks

Agree on a protocol of primary contacts and list

of tribal priorities

Zuni Salt Lake Sacred Site

Documents

Improving and Sustaining Tribal Relations