Implementing a TCL Approach

The TCL approach consists of guidance for agencies and project applicants as well as tribes. The Guidelines for Tribal Pre-Consultation and Engagement are multipurpose: they are intended to assist agencies and applicants consulting with tribes for specific proposed undertakings, as well as to model a holistic approach to building positive long-term relationships among agencies and tribes who may need to work together over generations. The Template for Indigenous Data Collection and Retention outlines a method for tribes to collect and retain information from which appropriate summary results can be provided to external parties. This part of the TCL approach is recommended in advance of any proposed undertakings, similar to the inventory requirement of Section 110 of NHPA. Finally, the Process for Application illustrates how the TCL approach can be implemented within existing policy, and the potential benefits for both land management and planning, and regulatory processes.

Guidelines for Tribal Pre-Consultation and Engagement

Synthesized and adapted from existing federal agency consultation guidelines (NRCS 2009; USFWS 2011; NOAA 2013), the following recommendations are best practices that should be followed by agencies and potential project applicants.  They are intended to enhance the government-to-government consultation process, not to replace it.

In addition to these pre-consultation guidelines, the TCL project team took extra steps toward building constructive relationships, a critical factor in achieving project objectives. The TCL team was fortunate to have resources and agency support to enable these additional measures, and appreciates that not all potential project applicants may have the leeway to conduct these steps as thoroughly. However, these procedures should be followed as much as possible, since they are critical and necessary for meaningful and effective engagement, consultation, and collaboration even when not required by policy or law.

DO YOUR HOMEWORK:

1. Research the tribe’s culture. “Culture” comprises how a group’s worldview influences their behavior. This includes a tribe’s governance structure, food preferences, spiritual practices, natural resource values, wealth, family structure, education system, etc.



2. Research the history of the tribe and its current and historical relationship to the Federal Government. Books, tribal newspapers, websites, and other documents can provide information on the tribe’s historical relationship with the Federal government. It is important to be aware of any relevant conflicts, wars, treaties, executive orders, case law, and statutes, and how these have evolved over the years.



3. Understand what is and what is not appropriate within tribal culture. Observation, reading, and discussions with designated tribal officials can provide pertinent information about the tribal culture and help minimize cultural missteps. An initial phone call to a tribal point of contact (such as THPO, Executive Director, etc.) can provide a better opportunity for introductions and can help lay the groundwork for an initial formal meeting. Be aware of the tribe’s decision-making process: not all tribes use the same process to make decisions. In meetings, be aware of protocols related to prayer, food, and gift-giving, and be prepared to act accordingly.

 

4. Understand the tribal perceptions of time and allow enough time to form ongoing relationships. Perceptions of time vary across cultures. The agency time rhythm is typically based on non-native culture which may differ from a tribe’s time rhythm. Agency staff should be aware of differences and work to accommodate tribal schedules when time horizons seem to be out of sync. Likewise, agency staff should be clear with tribal contacts about any exigent circumstances driving the agency’s timing for action. It may also be important to consider subsistence and ceremonial schedules, preparation times, and funerary rites and grieving periods before consultation begins.

PROJECT PLANNING:

1. Budget resources and time for building relationships before decisions are made. Establish the formal and informal preliminary contacts and the appropriate authorities needed for proceeding. In many federal-tribal interactions, this phase is typically overlooked in the formation of working relationships. Take time to assess and define roles, organizational attributes, and explicit procedures.

 

2. Work toward building tribal capacity. Building institutional capacity should be a fundamental goal of potential projects within not only the office of the THPO and the tribal government, but also among the entire tribal community and the tribe’s cultural and natural resource departments, and other partners. As an example, funding for the TCL project accounted for necessary staffing, logistics, and supplies, as well as ongoing technical assistance necessary for the completion of the project; each tribe determined its own needs, negotiated the terms of its contract, and managed its allocated funds.



3. Construct flexible protocols. The protocols should allow tribes to implement their own contributions with due consideration of project resources and procedural fairness, as well as consider tribes’ distinct treaty arrangements, varied formal and informal tribal governance structures, and unique views of their cultural legacies and methods for protecting them. A method to accomplish this is to begin to construct ground rules for the process and any associated meetings. (see Appendix III “Procedural Specifics to Consider”)

 

4. Establish procedural neutrality when conducting meetings and workshops. Independent facilitators, personally and professionally qualified by their experience with tribes, non-tribal governments and indigenous cultures, should be included as members of the project team in order to guide the process and facilitate meetings and workshops.

CONSULTATION AND COLLABORATION:

1. Understand tribal authority and representation. In any situation, understanding both formal and informal authority is profoundly important. Representation and authority can be nested in many layers: Who speaks for “culture"? Who speaks with the legitimate authority of government? Who possesses culturally-appropriate credentials, whether from the culture of academe or the culture of an oral tradition? Who speaks for the past or the future?

 

2. Respect tribal sovereignty, self-determination, and protocols. Tribes must have discretionary control over their means of reaching desired outcomes according to their own cultural values and norms.



3. Respect tribal representation of tribal interests and practices. Tribal governments, tribally-recognized experts, and a tribe's view of itself as well as of its past, present and future, all legitimately represent a tribe's interests. Tribes and their THPOs, or a tribally appointed cultural officer, can best identify and define the authority of information sources from among elders, community members, oral histories, primary and secondary literature sources, academically trained tribal staff, consultants and other sources. Accordingly, each tribe has the discretion to collect and manage its data according to its own standards and appropriate practices. For example, the three tribes participating in the TCL project team use distinct approaches. The Yurok Tribe, as a cultural practice, conducts archaeological surveys but does not conduct archaeological excavations. By contrast, the Grand Ronde Tribe has an active survey and excavation program, and the Makah Tribe utilizes survey and excavation when necessary. All of these approaches are equally valid.

 

4. Keep agency leadership (or funding organization) apprised of developments (if they are not actively involved in the process). Agency representatives, often severely limited in their personal discretionary authority, need immediate and frequent access to managers, legal personnel, policy experts and signatory authorities. Decision-makers should be regularly briefed on project status, progress, and potential concerns.



5. Adapt current information in light of new information from tribes. The engagement process should be refined when tribal members and affiliates present information not typically used by agencies in decision-making. When tribal members and affiliates present divergent information to agencies, agency representatives should seek to clarify the divergent information with the governing body of the tribe.

Template for Indigenous Data Collection and Retention

In the TCL Project, each of the three participating tribal communities conducted case studies to demonstrate how this process could be used to identify tribal cultural landscapes. The target study areas focused on the landscapes within the ceded and aboriginal homelands of each of the representative tribes and incorporated coastal and marine areas that could be impacted by offshore renewable energy development. The case studies focused on areas that include coastal land-based and offshore areas of tribal significance. Each case study incorporated an area of at least 6,000 acres (2,428 hectares) and was determined in coordination with the BOEM Project Officer.

The tribes began their case studies with Traditional Cultural Property (TCP) and Traditional Knowledge (TK) analyses of tribal sites and resources within representative tribal regions. The types of cultural resource information identified included TCPs, information related to traditional gathering, hunting, fishing and other subsistence and commerce activities, as well as those related to spiritual and ceremonial sites and activities. The tribes conducted such project activities as archival research, field investigations and visits to select type-sites, community outreach, the selection of oral history candidates, collection and transcription of oral histories, and development of draft and final reports.

The various intra-tribal outreach activities were decided upon by participating THPOs and included meetings with tribal members to identify potential TCPs, TK, cultural use sites and use activities within the defined study areas. When appropriate, notices and surveys were also placed in tribal newsletters/newspapers, and mailings sent to tribal member households. Outreach activities were also conducted in roundtable discussions, open houses, and presentations to elders. Additional information pertinent to each tribe’s outreach activities is included in the Final Report.

Data collected and analyzed by each tribe is retained by each tribe. Case study information that tribes conveyed to BOEM and NOAA is at the discretion of each tribe, and represents the minimum amount of information needed. The following template provides a method for tribes to collect and hold information that can be queried internally, with the ability to provide summary results to external parties (Figure 1). These broad steps outline the general activities undertaken by each TCL project team tribe during their case studies. Additional discussion of successes and challenges encountered is included in the Final Report.

This template is not intended as a detailed instructional manual, but should be adapted by individual tribes undertaking the process. The method can help set benchmarks and provide conversation points between agencies, applicants, and tribes.

The steps for indigenous data collection are as follows:

1. Conceptualization: Tribe identifies an objective or research question, then determines types of information to be collected and analyzed, formats for recording and processing, and ways to ensure security and access. Tribe may also identify format for presentation and discuss future applicability of data.

 

2. Data Acquisition: This can be an ongoing process; tribe determines data standards and attributes, and gathers and stores information. Tribe gathers and stores information according to its individual tribal access policy.



3. Geo-reference: This analysis step includes boundaries (if applicable), data layer development (including metadata), data linkage and cleaning, and document verification.

 

4. Synthesis: This analysis step can include information on—and illuminate linkages between—place, activities, traditional knowledge (TK), context, and ultimately cultural understanding.



5. Presentation: At the sole discretion of tribe; tribe may choose to present any of the above findings via public presentations including non-sensitive data, maps and GIS data layers, field visits, and written and oral reports.

Process for Application

The TCL approach has numerous potential benefits. The approach can enhance the overall planning process under the National Environmental Policy Act (NEPA), the Section 106 process of the National Historic Preservation Act (NHPA), as well as broader government-to-government consultations. Indeed, the Council on Environmental Quality (CEQ) and the Advisory Council on Historic Preservation (ACHP) have recently illustrated how NEPA and Section 106 processes can be integrated (CEQ and ACHP 2013).

A useful model comes from New South Wales, Australia, where the Office of Environment and Heritage has created the guidebook Cultural landscapes: A practical guide for park management (Dept. of Environment, Climate Change and Water 2010). Intended to assist protected area managers in the identification, assessment, management and interpretation of cultural values, the guide provides a framework for values-based planning that has broad utility. It outlines a stepwise process for applying a cultural landscape approach, which generally parallels the process followed by the TCL project.

Combining and adapting CEQ and ACHP’s integrated process model for NEPA and NHPA with the stepwise process for applying a cultural landscape approach outlined in the New South Wales guidebook yields the following framework (Figure 2). This model shows how the TCL approach can be feasibly implemented under existing federal policy and regulatory framework. The steps for conducting NEPA and NHPA Section 106 analyses are also included for comparison, to illustrate how the steps in the TCL approach align, and at what points they could be implemented. The TCL approach does not substitute for the other regulatory compliance structures but should be used to inform these processes.

The steps in adopting a TCL approach are as follows:

1. Identify clear management objectives: Agency determines the proposed action/undertaking through its NEPA/NHPA process. This includes identifying potential tribes for government-to-government consultation as well as non- government-to-government engagement, identifying the initial area of potential effect (APE), and potential impacts to resources.

 

2. Engage tribes: Agency should follow the steps outlined above in Section IV.A. Guidelines for Tribal Pre-Consultation and Engagement. Agency sends formal letter to tribal leaders requesting government-to-government consultation, including NEPA/NHPA requirements. First consultation meeting begins by identifying protocols for consultation during proposed action/undertaking and clearly describes how sensitive information will be handled. The initial APE and known resources may be identified by the agency, but neither of these should be presented as final information. Definition of the final APE and potential resource impacts must be developed through the consultation process.

 

3. Identify places/landscapes/values: This step is conducted by tribes, following the steps outlined above in Section IV.B. Template for Indigenous Data Collection and Retention. This process is not dependent on a proposed undertaking, and should ideally be completed by tribes in advance of any proposed undertakings. During the TCL process, the tribe reviews project information, identifies landscapes that could be affected by a proposed action/undertaking, determines what information will be shared with the agency, and reviews/refines protocols for sharing sensitive information.

 

4. Plan for managing cultural values: Tribe and agency meet to develop a plan to incorporate TCL information into the decision process, protect sensitive information, and determine how agency will provide feedback under Step 6. Under the NEPA process as typically conducted, the public review and comment step does not distinguish between tribes and other interested groups, but this step should include a separate government-to-government review and comment period (CEQ… 1978). Under the NHPA Section 106 process, the agency would assess, evaluate, and resolve any potential adverse effects on historic properties (on or eligible for listing on the National Register) as needed in consultation with tribes. The TCL approach shifts the focus to managing resources based on cultural values, in a truly collaborative manner where tribal input is integral to decision-making—being both incorporated earlier in the process and verified by tribes as appropriately represented in outcomes.

    

5. Integrate into existing management framework and/or review process: Tribes outline steps to ensure that agencies incorporate tribal input into NEPA and NHPA documents, and memorialize through Finding of No Significant Impact/Record of Decision (FONSI/ROD) and, if needed to resolve adverse effects, Memorandum of Understanding/Agreement or Programmatic Agreement (MOU/MOA or PA).

 

6. Feedback Dialogue: Agency reports back to tribe informing them how their input was used in the decision-making process, and facilitates tribal review to ensure appropriateness of use.

 

7. Monitor and Review: Agency and tribe review the process to ensure that all parties are satisfied with outcomes. Project applicant provides opportunities for agency and tribes to monitor activities related to the undertaking. If necessary, loop back to Step 4 and repeat. When consensus is not reached: When the parties acknowledge that agreement is not being reached, adopt the positive view that areas of disagreement are problems to be solved together. Assess the process used, clearly describe the areas of disagreement, and discuss among appointed representatives in order to clarify as well as to deepen understanding of any barriers. Based on mutual understanding, formulate a plan for working together in the future.

Most agencies have projects that generally fall into two different categories. These are 1) land management and planning processes, and 2) regulatory undertakings. The TCL approach has the potential to provide meaningful contributions to both sets of processes.

For land management and planning actions, this process will have the most immediate impact. During these types of undertakings, indigenous groups will be able to identify areas of cultural and spiritual importance to them, as well as the types of resources throughout the planning area that are important in developing more nuanced management schemes. The map below shows some of the points of interest identified from the Grand Ronde case study (Figure 3). This map illustrates how areas can be expressed in a generic manner to an agency while allowing targeted consultations to look at specific locations and the management proposals that may affect them.

A TCL approach can assist indigenous communities and agencies in communicating about areas of mutual interest to ensure that both parties have meaningful interactions concerning places and resources. Additionally, it can also allow indigenous groups to focus consultation as they see fit and work with agencies to identify and work toward appropriate management of these places and resources.

As agencies and the indigenous groups with which they are consulting identify areas where ecosystem-scale management will take place, including vegetation management, infrastructure development, road improvement, aesthetic improvements or other potential undertakings, the two parties can find mutual understanding in the indigenous concepts of landscape, and focus on holistic planning that will benefit agencies in their responsibilities. This will assist agencies in complying with NEPA and fulfilling their fiduciary responsibilities of consulting, and can assist in compliance with the NHPA. This also transforms a planning and pre-planning process from one of mere notification to one of more holistic, meaningful, and effective consultation.

For regulatory undertakings, this process will be useful as part of the Section 106 NHPA process and potentially useful in identifying areas eligible for National Register listing as TCPs, or as properties of “traditional religious and cultural importance to an Indian tribe or Native Hawaiian organizations” under Section 101(d) 6(A) of NHPA.

Using the TCL approach will assist indigenous communities in recording information of importance to them. When notification is sent to these communities during regulatory undertakings, this tool will enable them to provide meaningful comments in a timely manner to agencies overseeing regulatory reviews. It will also enable project consultation to be targeted and reviewed quickly so that potential issues and pitfalls can be addressed early. If avoidance of impacts is not an option, the use of these kinds of studies will provide indigenous communities a way to recommend mitigation and minimization measures to agencies, as well as enable agencies to evaluate the recommendations in a timely manner.

Importantly, agency representatives should understand that the information developed under this TCL process will typically be proprietary to the participating indigenous group unless agreements are developed to identify data sharing responsibilities. As such, this is not a replacement for the normal government-to-government consultation process, but an enhancement of it. Some indigenous groups may not have the infrastructure or capacity to participate in this process, but through consultation it may be possible for agencies to assist these indigenous groups in conducting this process by providing technical assistance, funding, and internship opportunities or by assisting in the development of agreements with institutions of higher learning.

It should be noted that this process is intended as a means for indigenous groups to convey their areas of concern and the types of resources that could potentially be impacted by agency undertakings. These types of studies, while extremely useful for agencies, should be developed and implemented by indigenous groups who may then assist agencies in developing and refining planning and regulatory actions via consultation.