This Memorandum is designed as a reference tool for Tribes and Native Nations as they consider enacting their own consultation laws. The research question that spurred this paper was: how are Native Nations, Tribes and Indigenous communities across the world reacting to and effectively addressing the lack of meaningful consultation in government (and to some degree private) development projects that affect them? The goal of this research was to search out the best practices and tribal laws already in existence and organize them into a workable format for use by Arizona Tribes. The final product is a compilation of implemented Indigenous/Aboriginal/tribal laws within this context. The hope is that by using this tool to create a strong consultation ordinance, the Tribes and Native Nations can put forth a clear standard for how they expect meaningful government-to-government consultation will occur between them and federal, state, and local agencies.
This project responds to the overwhelming abuses by government agencies (and third parties) who undertake development on reservations, or on off-reservation sites of cultural or religious significance to Native Nations, without engaging in any meaningful dialogue with those affected. Although the right to government-to-government consultation is well documented and established as a legal principle in this country, in practice it is woefully inadequate or in most cases non-existent.
The research findings have been divided into "topics," which Tribes want consider including in their final laws. Each topic has an explanation why it was included for consideration, and contains drafting examples taken from tribal ordinances which address that particular topic.
Part One discusses the background of consultation, and where the legal responsibility to consult with Tribes stems from. We then address how this mandate to consult has failed thus far and give some specific complaints that shed light on why a tribal consultation ordinance is needed. It also mentions, beyond the legal mandate on the government, why it is good business practice for third party developers to engage in meaningful consultation as well.
In Part Two, we define of consultation on a theoretical level and the principles that guide it. In doing this, we give examples of how different tribes have formulated the scope, applicability and timing of how they wish to be consulted.
Part Three explores the process of consultation. We lay out how different ordinances have been chosen to address the method of initial consultation, including the form, timing, contact person and type of information required. Some tribes also include items like disclaimers against false claims of consultation; requirements that governments offer funding to allow the tribe to meaningfully respond to consultation requests; or a clause about how to address traditional knowledge in the development context.
This section also addresses the duties of the government in responding to the consultation process. Many tribes have chosen to outline with clarity that the government must not only consult, but must take action on the findings of the consultation. This helps to assure that consultation has "teeth," so to speak. These accommodation clauses will often lay out appropriate factors that need to be considered when a project is determined to have an impact on a tribe's interest.
Another important concern exemplified by the ordinances within this Memorandum relates to what happens after an initial consultation has occurred. Some tribes require the outcomes of consultation be reduced to a final written agreement; some include clauses for dispute resolution and provide for follow up procedures in order to support an ongoing tribal-agency relationship. Lastly, the research concludes with how some tribes have chosen to include obligations on third party developers within their ordinances, and lays out some international principles that support the imposition of this obligation on third parties.
The Indigenous Peoples Law & Policy Program at the University of Arizona Rogers College of Law has prepared this Document at the request of the Inter Tribal Council of Arizona. We acknowledge the valuable assistance from the law firm of Montgomery & Interpreter.
Robert Alan Hershey
Professor of the Practice
Director of Clinical Education
Indigenous Peoples Law & Policy Program
Arizona Tribes have a right to meaningful government-to-government consultation both as sovereign nations and as a part of the federal government's trust responsibility to Indian tribes. This right is confirmed in the U.S. Constitution, and related case law, as well as in certain treaties, executive and secretarial orders. The United States has also prescribed varying processes for its agencies and departments to engage in consultation with affected Indian tribes on matters affecting tribal interests. Thus, almost all of the federal agencies and departments within the United States' executive branch have procedures (to varying degrees of specificity) that outline when and how consultation should occur. These procedures can be found in agency and department policies, guidance documents and handbooks. Unfortunately, the United States has - at virtually every level of government - either wholly failed to fulfill its consultation obligations to Indians, nations and communities across the country and here in Arizona or has implemented government-to-government consultation in such a confusing or ineffective manner as to render the consultation process meaningless. The lack of respectful and meaningful consultation on the part of federal agencies and departments has resulted in a myriad of adverse consequences to tribal governments and Indigenous People, including injury to their tribal resources; holy places and sacred sites; and religious, traditional and cultural life-ways.
One possible solution to this pervasive problem is for Arizona tribes to exercise their own sovereign authority to enact tribal law that sets forth a baseline for how meaningful government-to-government consultation should be effected.
This research represents a compilation of available Indigenous, Aboriginal, and Tribal consultation policies, some best practice materials, and a few choice federal agency policies. This research will be used to guide the development of a draft model ordinance, available for use by the Arizona Tribes. The hope is that tribes will use this model to adopt and enforce a uniform, baseline set of consultation laws that all federal (and state) agencies and departments would be required to comply with when consulting with the Indian Tribes in Arizona.
The decision to adopt tribal consultation laws may be a critical step in asserting tribal sovereignty and demanding that tribes' rights be recognized. The adoption of a tribal consultation ordinance may also remove the argument often heard from federal agencies that they are "confused" as to what meaningful consultation should look like, because it will lay out an agreed-upon procedure that the federal government must follow to consult with Arizona Tribes. It will lay out clearly the roles and responsibilities of both parties in the process. This will help to assure meaningful and ongoing consultation. In the case it is not followed, the Tribes could assert a legal remedy for the violation of tribal law and the federal trust responsibility.
E.O. 13007 - Indian Sacred Sites (PDF)
E.O. 12898 - Fed. Actions to Address Enviromental Justices in Minority Populations(PDF)
1994 Clinton Memo re Tribal Consultation (PDF)
Statement by President George H.W. Bush Reaffirming the Government-to-Government Relationship Between the Federal Government and Tribal Governments (PDF)
1983 Statement Of President Ronald W. Reagan On American Indian Policy (PDF)
1970 Nixon Special Message to Congress on Indian Affairs (PDF)
Executive Office website
S.O. 3206 - American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the ESA (PDF)
S.O. 3225 - Babbitt: ESA & Subsistence Uses in Alaska (Supp. To S.O. 3206) (PDF)
DOI Policy on Consultation with Indian Tribes, 2011 (PDF)
DOI Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corps. (PDF)
Department of Interior website
Archaeological Resources Protection Act (ARPA) - 16 U.S.C. 470 aa-mm (PDF)
Native American Graves Protection & Repatriation Act (NAGPRA) - 25 U.S.C. 3001 et seq.
- 3 C.F.R. 10.5 - Consultation (PDF)
- 43 C.F.R. 10.8 - Summaries (PDF)
- 3 C.F.R. 10.9 - Inventories (PDF)
National Historic Preservation Act of 1966 (NHPA) - 16 U.S.C. 470 (PDF)
- 36 C.F.R. 800.2 - Participants in the Section 106 process (PDF)
H.R. 5023 111th Congress 2nd Session (04/14/2010) House Bill re: Consultation (PDF)
U.S. Government Printing Office website
ACHP Native Hawaiian Consultation Handbook - June 2011 (PDF)
ACHP Tribal Consultation Principles - March 2010 (PDF)
ACHP Consultation Process pursuant to E.O. 13175 (PDF)
Advisory Council on Historic Preservation website
USDA Dept. Regulation 1340-007: Policies on American Indian & Alaska Natives, March 14, 2008 (PDF)
USDA Dept. Regulation 1350-001: Tribal Consultation, Sept 11, 2008 (PDF)
USDA Action Plan for Tribal Consultation & Collarboration, 2010 (PDF)
U.S. Department of Agriculture website
FS Handbook, Sec. 1509.13 - 2012-01: Directive on Consultation, July 17, 2012 (PDF)
77 Fed. Reg. 21260 - Final FS Forest Planning Rule, April 9, 2012 (PDF)
USDA FS Final Report re Indian Sacred Sites, December 2012 (PDF)
USDA Forest Service website
DOD American Indian & Alaska Native Policy, Instruction Number 4710.02, 2006 (PDF)
Air Force Instruction 32-7065 - June 1, 2004 (PDF)
Army Corps of Engineers Indian Sovereignty & Government-to-Government Policy, 1998 (PDF)
Army Corps pf Engineers Tribal Consultation Policy, 2012 (PDF)
Marine Corps Order 5090 - Cultural Management (PDF)
Sec. of Navy Instruction 11010.14A - Government-to-Government Consultation (PDF)
Department of Defense website
National Oceanic & Atmospheric Administration website
FAA Order 1210.20 - Tribal Consultation Policy & Procedures (PDF)
DOT Government-to-Government Consultation Process & Methods (PDF)
DOT Tribal Consultation Plan, April 5, 2011 (PDF)
U.S. Department of Transportation website
Case Summaries Consultation Material.
1. Bear Lodge Multiple Use Ass'n. v. Babbit, 175 F.3d 814 (1999): NHPA and NGPRA. Secondary reference to 13007
a. Devils Tower, the first national monument, started facing increasing conflict over use. Rock Climbing had dramatically increased while Native people continued to use the site for their religious practices. The National Parks Service recognized that the rock climbing not only effected the environment but also disrupted the ability of Natives to practice their religious ceremonies in peace and began preparing a climbing management plan to mitigate the impacts. The plan provided that no new climbing routes would be permitted and no new bolts or pistons will be allowed on the Tower. Additionally the plan required seasonal closure of climbing on the Tower to protect endangered raptor nests. Finally, the plan states: "[i]n respect for the reverence many American Indians hold for Devils Tower as a scared site, rock climbers will be asked to voluntarily refrain from climbing on Devils Tower during the culturally significant month of June." Rock climbing interests filed suit claiming that the plan violated the establishment clause. The court held that the climbers lacked standing because of a lack of injury. The court discussed the American Indian Religious Freedom Act, NAGPRA, NHPA, and Executive Order 13007 before dismissing due to lack of standing.
2. Navajo Nation v. U.S. Forest Service, 535 F.3d 1058 (2008): RFRA
a. Navajo Nation brought suit to prohibit the use of reclaimed wastewater to make artificial snow on the San Francisco Peaks. The mountain holds special value in Navajo creation story, is considered a holy place by many Tribes throughout the region, and is actively used for plant gathering, healing ceremonies and many other religious, traditional and cultural purposes. Tribal Appellants contended that using wastewater will (among other things) negatively impact the plants they use on the mountain for their ceremonies. In additional to other claims, the Tribal Appellants asserted that the impacts from the use of artificial wastewater on the Peaks will impose a substantial burden on the free exercise of their religion in violation of, the Religious Freedom Restoration Act (RFRA). The court (en banc) rejected the argument of the Navajo Nation and held that the proposed action does not impose a substantial burden on the practice of their religious beliefs. The court found the use of artificial snow "does not coerce plaintiffs to act contrary to their religious beliefs under the threat of sanctions, nor does condition a governmental benefit upon conduct that would violate their religious beliefs." The court did not understand the spiritual connection the Navajo Nation was trying to make and found: "that there are no plants, springs, natural resources, shrines with religious significance, or religious ceremonies that would b physically affected by the use of such artificial snow. No plants would be destroyed or stunted; no springs polluted, no place of worship made inaccessible, or liturgy modified… Thus, the sole effect of the artificial snow is on the Plaintiffs' subjective spiritual experience."
3. South Fork Band Council of Western Shoshone of Nevada v. U.S. Dept. of Interior, 588 F.3d 718 (2009): E.O. 13007.
a. This is an appeal from the denial of a preliminary injunction to a major gold mining project on the side of Mt. Tenabo in Nevada. The mountain has religious significance to the Western Shoshone of Nevada. The Tribe claimed that the Federal Land Policy Management Act (FLPMA) creates a duty on the part of the BLM to take action to prevent unnecessary and undue degradation of the land. To bolster their claim the tribe relied heavily on Executive Order 13007 which imposes an obligation on the Executive Branch to accommodate Tribal access and ceremonial use of sacred sites and to avoid damaging the sacred site. The Tribes did not question the sufficiency or adequacy of the BLM consultation with the Tribe. Instead, the Tribe argued that the BLM, based on its study and consultation, arbitrarily focused on the specific sites identified during the study. The Tribe believes the entire mountain is sacred and the report and consultation where regarding specific sites and not the mountain as a whole. The court found that the agency complied with the executive order to accommodate the Tribes' need for access to and use of religious sites. The court noted that. "as a result of BLM's consultation and recognition of the need to accommodate religious practices, the original scope of the project was reduced."
4. Hoopa Valley Tribe v. Christie, 812 F.2d 1097 (1986): BIA Government-to-Government Consultation Policy, 2000 (THIS POLICY IS MUCH EARLIER THAN THE 2000 one)
a. Hoopa Valley sought an order preventing the BIA from moving offices and equipment off of the reservation. The Tribe relied on "The Guidelines for Consultation with Tribal Groups on Personnel Management within the Bureau of Indian Affairs", which are in letter form and unpublished. The guidelines call for consultation for major changes that have an effect on Indians. The court held the guidelines do not establish legal standards that can be enforced. Furthermore, the court found "convincing evidence that the were consulted about the transfer." "Consultation is not the same as obeying those who are consulted. The Hupas were heard, even though their advice was not accepted."
5. Confederated Tribes and Bands of Yakima Indian Nation v. F.E.R.C., 746 F.2d 466 (1984): Policy Statement on Consultation with Indian Tribes in Commission Proceedings, 2003 (MAY WANT TO LOOK AT THE PACIFIC NORTHWEST POWER AGREEMENT for CONSULTATION REQUIREMENTS WITH TRIBES – see if other consultation requirements in other power acts.)
a. The Rock Island Project was originally licensed in 1930 as the first dam to span the Columbia River. In 1982, the Federal Energy Regulatory Commission (FERC) upheld an order granting a new, 40 year, license for the continued operation of the plant. Various agencies and the Yakima Nation filed suit because of impact the older dam had on juvenile fish. The older dam lacked adequate ways for the young fish to pass the dam. The agencies and Tribe attempted to condition the renewal of the license on providing measures that would allow small fish easier passage. FERC rejected the condition and deferred the consideration and implementation of fishery protection until after the licensing. The court rejected FERC's argument and held that the Pacific Northwest Power Agreement ("PNPA") requires them to consult with tribes prior to licensing. Specifically the court found: "[t]he consultation obligation is an affirmative duty… The consultation requirements are the primary means by which FERC is to comply with its duty to examine fishery issues prior to licensing."
6. Conservancy of Southwest Fla. V. U.S. Fish and Wildlife Service, 2010 WL 2776840: E.O. 13175 and S.O. 3206 (USFWS).
a. Seminole Tribe of Florida filed suit to intervene in a case against the United States Fish and Wildlife Service to initiate rulemaking to establish critical habitat for the Florida panther. The Tribe argued that the panther is used in tribal cultural and religious practices and that any decision of the court will impact the Tribe's social, cultural, religious, political, and economic viability along with its legal right to manage its own natural resources. The Tribe relied on Secretarial Order 3206 that states: "Indian tribes are governmental sovereigns; inherent in this sovereign authority is the power to make and enforce laws, administer justice, manage and control Indian lands, exercise tribal rights and protect tribal trust resources." The tribe also relied on Executive Order 13175 that provides federal agencies should "where possible, defer to Indian Tribes to establish standards; and in determining whether to establish federal standards, consult with tribal officials as to the need for federal standards and any alternatives that would limit the scope of federal standards or otherwise preserve the prerogatives and authority of Indian Tribes." In allowing the tribe to intervene the court stated: "Here, the Seminole Tribe, as dependent sovereign Indian nation, has legally recognized rights and interests that only it possesses and that only the Seminole Tribe and no other parties to the litigation can adequately protect and represent in this lawsuit."
7. Center of Biological Diversity v. Salazar, Slip Copy (2011), 2011 WL 6000497: USFWS Native American Policy, June 28, 1994
a. The San Carlos Apache Tribe and the Salt River Pima Maricopa Indian Community intervened in a suit attempting to set aside the U.S. Fish and Wildlife Service's finding that the desert bald eagle does not qualify as a distinct population segment entitled to protection under the Endangered Species Act (ESA). One of the issues raised by the Tribes was that the Service had failed to meaningfully consult with the Tribes under the ESA. The court found "Congress and the Interior have not imposed such consultation obligations in the ESA context, and it is not the proper role of the Court to impose such obligations on its own."
8. San Juan Citizens Alliance v. Norton, 586 F. Supp.2d 1270 (2008): NHPA
a. The San Juan Basin encompasses one of the largest gas fields in the United States. In 2000, the Bureau of Land Management (BLM) started preparing a resource management plan (RMP) to guide land use and management for the next twenty years. In preparing the plan, BLM held formal public meetings and used a consulting firm to conduct interviews with local residents. The new plan would allow up to 9,970 new gas wells to be drilled at a rate of 500 wells a year for the next 20 years. Plaintiffs alleged that the BLM violated NHPA while preparing the RMP by failing to consult adequately with Indian Tribes to identify and protect properties of traditional spiritual and cultural importance. The court found that BLM had adequately consulted with the Tribes. BLM had sent letters to 51 different Tribal organizations and 29 other Tribal officials to inform them of the project and to seek their input on concerns and issues BLM should consider in the planning process. In addition, BLM hired a sociological consulting firm early in the process to conduct personal interviews with rural Navajo residents and also engaged in numerous meetings with the Navajo Nation, various Navajo Chapters and individual members.
9. Quechan Tribe of the Ft. Yuma Indian Reservation v. U.S. Dept. of the Interior, 755 F. Supp.2d 1104: NHPA.
a. A large solar energy project is planned on 6500 acres of federal owned land in the California Desert Conservation Area. The area where the project would be located has a history of extensive use by Native American groups. The Quechan Tribe believe that the project would destroy hundreds of their ancient cultural sites including burial sites, religious sites, ancient trails and buried artifacts. Tribe brought suit arguing that the Department of the Interior failed to comply with the National Historic Preservation Act (NHPA). The court found that NHPA requires consultation to "commence early in the planning process, in order to identify and discuss relevant preservation issues…" Furthermore the court held that the "consultation requirement is not an empty formality; rather it 'must recognize the government-to-government relationship between the Federal Government and Indian tribes' and is to be 'conducted in a manner sensitive to the concerns and needs of the Indian tribe." The Tribe offered evidence of a letter sent to the BLM that stated they had informally learned of the project and thought the quick schedule would not allow time for the BLM to consult with the tribe to develop a plan to avoid harming the historic sites. The court found the letter supported the contention that the consultation process was started late and also the time frame for consultation was compressed. The BLM produced a large amount of material in an attempt to show that they had completed the required consultation but the court found that it did not prove they had consulted adequately with the Tribe. Specifically the court found the material "create the impression they are padding the record-perhaps because the evidence doesn't favor them." The sheer size of the material was not meaningful and did not in itself show the NHPA-required consultation occurred. BLM had failed to consult with the Tribe on a government-to-government basis and their invitation to consult with the Tribe "amounted to little more than a general request for the Tribe to gather its own information about all sites within the area and disclose it at public meetings. The court granted an injunction on the project for failure of the BLM to consult with the Tribe as required under NHPA.
10. Slockish v. U.S. Federal Highway Admin., Slip copy (2012), 2012 WL 3637465: NAGPRA.
a. Three individual Native Americans brought suit against the Federal Highway Administration (FHA) for violating the Native American Graves Protection and Repatriation Act (NAGPRA) in widening a highway. Since it was undisputed that no human remains were excavated the question for the court was whether the FHA had a duty to consult with plaintiffs under NAGPRA in the absence of any actual discovery or excavation of human remains and objects. The court ruled that "NAGPRA does not apply unless Native American cultural items are actually excavated or discovered. The mere potential for their exaction or discovery is insufficient."
11. Fallon Paiute-Shoshone Tribe v. U.S. Bureau of Land Management, 455 F.Supp.2d. 1207 (2006): NAGPRA
a. This cave involves 10,000 year old human remains that were found in 1940 during an excavation in a place known as Spirit Cave. The Fallon Paiute-Shoshone Tribe claims that the location where the remains were found is located on traditional Tribal land. The enactment of NAGPRA and the efforts to inventory the remains resulted in this dispute. The problem occurred when the remains were radiocarbon dated and the age was determined. The scientific community wanted to study the early remains, while the Tribe wanted them to be returned and buried. The BLM – responding to pressure from the scientific community – found that they could not identify the remains as belonging to the Tribe. The Tribe brought suit claiming the BLM failed to consult with them as required under NAGPRA by not taking into account their scientific evidence that refuted the BLM determination. The court found the statute demonstrates that the initial decision on affiliation was ultimately that of the government agency having possession of the remains. Furthermore, the court found that the consultation requirement is not designed to foster an academic debate on the issue of cultural affiliation, but rather "to aid the government agency in compiling the necessary cultural data needed to reach its decision and work on an agreement." The court found the initial consultation was all that NAGPRA required and BLM's failure to continue meetings and consultations with the tribe after it retained experts was not in violation of the statute.
12. Snoqualmie Indian Tribe v. F.E.R.C., 545 F.3d. 1207 (2008): Policy Statement on Consultation with Indian Tribes in Commission Proceedings, 2003
a. The Snoqualmie Tribe brought suit to review the decision by FERC to grant a license to renew for another forty years the Snoqualmie Falls Hydroelectric Project. The Tribe argued that FERC failed to consult with the Tribe as required by its 2003 Policy Statement on Consultation with Indian Tribes in Commission Proceedings. The court rejected the argument because the Tribe became federally recognized in 1999 and FERC began the relicensing in 1991. Because the Tribe was not federally recognized at the time of the relicensing, the court held that FERC had no duty to consult with them.
13. Te-Moak Tribe of Western Shoshone of Nevada v. U.S. Department of the Interior, 608 F.3d 592 (2010): NHPA.
a. In 2001 the BLM approved Cortez Gold Mines plan for exploration activities in a 30,548 acre area and was permitted to disturb a total of 50 acres of land within the entire project area. In 2003, Cortez proposed an amendment that would permit them to disturb five times the original area for a total of 250 acres throughout the project area. The BLM sent a letter to the Tribe one year after receiving the proposed amendment from Cortez. BLM noted that there was already extensive documentation of traditional, cultural, and spiritual use sites within or near the project area, but asked for help identifying additional concerns and developing alternatives that might reduce adverse impacts. The Tribe never responded to the letter or a later call asking them for comment on the proposed environmental assessment. BLM conditionally approved the amendment in 2004. After hearing about potential problems, the BLM state director met with the Tribal Chairman and modified the plan that included additional mitigation measures. The court found that BLM had waited a full year before consulting the Tribe about the amendments and then contacted them a month before public comment on the plan. However, even with this late notice, the court upheld BLM's consultation because the BLM had been consulting with the Tribe for years. Furthermore, "Plaintiffs do not identify any new information the Tribe would have brought to the attention of the BLM had it been consulted earlier in the approval process for the Amendment."
14. New Mexico ex rel. Richardson v. Bureau of Land Management, 459 F.Supp.2d 1102 (2006): NHPA.
a. A consolidated set of cases that challenges the BLM's adoption of a Resource Management Plan Amendment (RMPA) and their approval of an oil-and-gas lease covering a portion of the area included in the RMPA. Plaintiffs contended that where a traditional cultural property ("TCP") in concerned, the BLM must complete a Section 106 consultation with affected Tribes under the National Historic Preservation Act (NHPA) before issuing a RMPA. On the other hand, BLM argued Section 106 consultation need not be completed until after leasing; that is when a party has applied for permission to drill and the BLM knows exactly where the proposed disturbance of land will occur. The court found "that the most significant point in the process as far as NHPA is concerned, with respect to TCPs, is the point at which BLM makes an irrevocable commitment of resources and thereby surrenders it ability to prevent any development on a particular parcel of land. For NHPA this is the point in which a lease is issued."
15. Pit River Tribe v. U.S. Forest Service. 469 F.3d 768 (2006): NHPA
a. Pit River Tribe brought suit to review the decision of the BLM to extend leases and approve a new geothermal plant in the Medicine Lake Highlands. The Tribe contends the extension and new leases were issued before the agency identified traditional cultural property on the leasehold. BLM had only conducted consultation for the new plant. The court found that the Section 106 consultation under the NHPA for the lease extensions was not adequate. The lease extension was a federal action that required consultation with the Tribe.
16. Apache Survival Coalition v. U.S., 21 F.3d 895 (1994): NHPA
a. This suit involves the proposed observatory complex on Mount Graham, in Arizona, that would include "construction of the most sophisticated array of telescopes ever assembled." Apache Survival Coalition, a nonprofit corporation created under the laws of the State of Arizona, composed of members of San Carlos Apache Tribe sought to halt construction of several telescopes on Mount Graham due to religious, traditional and cultural concerns. In 1985, the Forest Service located three "shrines" on two of Mount Graham's summits. The Forest Service concluded that these shrines qualified for the National Historical Register and contacted nineteen local tribes concerning the find. The Ak Chin Indian Community and the Hopi Tribe responded. Subsequently, the state historic preservation officer determined that the planned telescopes would have no adverse effect on the shrines. The Forest Service began the NEPA and NHPA process and requested input from the San Carlos Apache Tribe, but the court found that the Tribe did not respond. In May 1988, the Forest Service asked if the San Carlos Apache Tribe wished to receive a copy of the final environmental impact statement. The Tribe asked to be taken off the mailing list, but the Forest Service kept them on its list and sent a copy of the final EIS to the Tribe. In 1989, two years after the administrative record had closed, the Chairman for the San Carlos Apache Tribe wrote to the Forest Service regarding the Mountain. The Forest Service then sent a letter to the Tribe asking about specific sites of interest to the Tribe, but the court found that the Tribe did not respond. The Forest Service received another letter from the Tribal Council in 1991. The Forest Service requested a meeting, but the Tribe did not respond. Shortly after the Coalition filed suit seeking injunctive relief. The Court held "that laches…bars the Coalition's claim. The court identified the Coalition members with the Tribe and found "its members asserted their rights in this action with inexcusable tardiness… It is clear… that the tribe ignored the very process that its members now contend was inadequate."
17. Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800 (1999): NHPA
a. Huckleberry Mountain is located within the state of Washington and contains 16% of the wilderness in the Pacific Northwest. 13% of this land is privately held. These lands are intermingled with federal lands in a checkerboard fashion from earlier railroad grants. In a purported attempt to unify the land, the Forest Service began negotiating a series of land exchanges. The Muckleshoot Tribe, a federally recognized Tribe, claimed that these were part of their ancestral lands and the Forest Service failed to "consult adequately with it regarding the identification of traditional cultural property" under, inter alia, the NHPA. The court held: "[a]lthough the Forest Service could have been more sensitive to the needs of the Tribe, we are unable to conclude that the Forest Service failed to make a reasonable and good faith effort to identify historic properties. When the Tribe asked the Forest Service for a study of its historic places and trails the Forest Service responded that they had already carried out research and wanted disclosure of any information about the sites they had found. The court found this action in "tension with the recommendations of the National Register Bulletin 38: Guidelines for Evaluating and Documenting Traditional Cultural Properties." Ultimately, the court found "Bulletin 38 does not impose a mandatory procedure, but merely establishes guidelines. Contravention of those recommendations, standing alone, probably does not constitute a violation of NHPA." The court's decision was partly based on the fact that it was reversing on other grounds.
18. La Cuna de Aztlan Sacred Sites Protection Circle Advisory Committee v. U.S. Department of the Interior, 20120WL 6839790: 2012 NHPA.
a. This suit was brought in connection with the construction of a solar power generation project ("Genesis Project") on nearly 2,000 acres of federal public land in California. The action was brought by individuals and the court granted leave to allow the Fort Mojave Indian Tribe to join the lawsuit for the NHPA issue. The Tribe did not join. An individual, Van Fleet, claimed to have consent of the Tribe to argue the NHPA issue. The court rejected the argument, "the reason only the Tribe itself, and not a tribal representative in his or her individual capacity, has standing is because the NHPA's regulations expressly mandate that '[c]onsultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian Tribes.'… Thus, only the tribe itself may bring a claim for failure to comply with the consultation provision."
19. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439: RFRA. Please insert first.
a. As part of a project linking two California towns, the Forest Service was planning on building a six mile paved segment of road through Chimney Rock in the Six Rivers National Forest. The Forest Service conducted a study of American Indian cultural and religious sites in the area in preparation for the road. The study found the entire area "is significant as an integral and indispensable part of Indian religious conceptualization and practice" and concluded constructing the road "would cause serious and irreparable damage to the sacred areas…" As a result, the study recommended not completing the road. The Forest Service decided not to adopt this recommendation and to move forward with the project. Suit was filed before the construction began claiming that the burden on their religious practices was strong enough to violate the Free Exercise Clause of the U.S. Constitution. The Supreme Court held that construction of the road would not violate the Free Exercise Clause. The court found the crucial word in the first amendment was "prohibit" and "[t]he First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that not prohibit the free exercise of religion." The court focused on the fact that the government action would not "prohibit" their religion but simply "make it more difficult to practice a certain religion." In order to trigger strict scrutiny the court declared the government must coerce individuals into violating their religious belief or governmental action would "penalize religious activities by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens."
Federal Agency Hearing and Appeals Cases
20. Hualapai and Fort Mojave Indian Tribes, GFS(MISC) 1(2011)( I.B.L.A.), 180 IBLA 158, 2010 WL 5779560: NHPA only.
a. The Arizona Game and Fish Department applied to purchase 1,200 acres of public land for an outdoor public shooting range. The Tribe opposed the project because it considered the surrounding area as cultural property and the shooting range would be within visual and auditory range. The BLM approved the shooting range and the Tribe appealed claiming it violated the NHPA. The Tribe contended that the BLM violated NHPA because they accepted the application of the Arizona Game and Fish before consulting with the tribe. The administrative review found the "NHPA process governs consultation regarding historic properties within the area of an undertaking, not the actual location of that undertaking. BLM only incurs an obligation to comply with the NHPA when it is presented with an undertaking."
21. Nez Pierce Tribe v. Northwest Regional Director, 36 IBIA 237 (2001): E.O. 13175 and BIA Government-to-Government Consultation Policy, 2000
a. Administrative appeal concerning whether the BIA properly consulted with the Nez Pierce Tribe over organization changes field offices located on the reservation. The Tribe contended that the BIA did not follow Executive Order 13175 and BIA's 2000 consultation policy. The administrative court held "that the consultation policy statements at issue here do not contain any standards by which to review whether BIA 'properly' consulted with an Indian tribe. Therefore, because there is 'no law to apply' in this situation, the Board lacks authority here to review the quantity and quality of BIA consultation."
22. George v. C.I.R., T.C. Memo 2006-121 (2006): E.O. 13175
a. An Individual of the Onondaga Nation argued that "Native Americans are not subject to income tax. In support of the argument, petitioner relied on Executive Order 13175, contending that it overrides all prior law on the subject and requires consultation with him before imposing a tax. The administrative court held that the order "is not intended to create any right, benefit, or trust responsibility, substantive or procedural, enforceable at law… Executive Order 13175 lacks the force and effect of law because it is not grounded in a statutory mandate."
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