The following Guidance Document (Guide) presents a method for agencies to consult with tribes more effectively and appropriately in advance of any proposed undertakings. It also suggests a means for tribes and other indigenous communities to relate their interests and concepts of landscape to federal agencies and other land and water management entities. The concept is rooted in a collaborative initiative related to offshore renewable energy development. This project–Characterizing Tribal Cultural Landscapes–was comprised of a team from the Bureau of Ocean Energy Management’s (BOEM) Pacific Outer Continental Shelf (POCS) Regional Office, the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Protected Areas (MPA) Center and NOAA’s Office of National Marine Sanctuaries (ONMS), two independent Tribal Facilitators, and representatives from the Tribal Historic Preservation Offices (THPO) of the Makah Tribe of Washington, the Confederated Tribes of Grand Ronde Community of Oregon, and the Yurok Tribe of California. The team worked collectively to develop a transferable best-practices method to identify areas of tribal use and significance that could be impacted by offshore renewable energy siting. Funding was provided by BOEM through an Interagency Agreement with ONMS.
This Guide is intended to be useful for indigenous communities as well as agencies and project applicants. It does not represent an official policy for any federal agency; rather it is designed to outline a proactive approach for resource management agencies and indigenous communities to work together in order to identify areas of tribal significance that need to be considered in planning and management processes. An approach of this nature can assist agencies in fulfilling their responsibilities under numerous laws and policies, including, for example: Section 101(d)(6), Section 106 (and its implementing regulations, 36 C.F.R. 800), and Section 110 of the National Historic Preservation Act (NHPA); consultation under the National Environmental Policy Act (NEPA); the American Indian Religious Freedom Act (AIRFA); Presidential Memorandum of November 5, 2009 and Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the subsequent Department of the Interior Secretarial Order (SO) 3317, and Department of Commerce Departmental Administrative Order (DAO) 218-8; Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations); and Secretarial Order No. 3330, Improving Mitigation Policies and Practices of the Department of Interior. It also can ensure that tribal governments are involved and responsible for the identification and protection of resources of interest to them.Although federal agencies are only required to conduct government-to-government consultation with federally recognized tribes, the guidelines in this document are intended to apply broadly to indigenous peoples, and are critical and necessary for meaningful and effective engagement, consultation, and collaboration even when they are not required by policy or law. These guidelines are applicable to all indigenous communities “in accordance with the principles of justice, democracy, respect for human rights, equality, non-discrimination, good governance and good faith” (UNDRIP 2008).
A key purpose of the Guide is to provide a basic method in which interests of an indigenous community can be recorded by that group, and summarized results and concerns can be applied in a culturally sensitive and relevant manner for use in planning and regulatory compliance by federal agencies. Using landscape as the unit of understanding ensures a full coverage of interest areas and an opportunity for presenting a holistic understanding of a place and its resources as related by affected tribal communities. The methods suggested here are predicated on an understanding and acknowledgement of indigenous communities’ sovereign rights, recognitions, and legal protections. To that end, the sources of information and methods by which information is gathered must be defined by each indigenous group. Likewise, the area, format, and type of information provided to agencies must also be defined by tribes, recognizing that multiple tribes and groups may have an affiliation with a single place. This approach is intended to be transferable and adaptable to any tribal community that may wish to document its own significant resources and places, in order to improve effectiveness and appropriateness of agency consultation in the future.
Although opportunities for implementing this approach are likely to be affected by federal legislation and regulations, areas of applicability are likely to be shared by tribes and agencies. The Guide ultimately outlines a framework for implementation that is compatible with existing policy and regulations, illustrating the respective roles of agencies and tribes in the process.
Finally, the Guide also provides definitions for terms and topics that can assist agencies, tribes, and project applicants in communicating more appropriately and effectively.