What is the role of applicants and their consultants/contractors in archaeology conducted under Section 106?
The ACHP’s regulations [36 CFR § 800.2(c)(4)]1 The ACHP advises federal agencies to monitor its applicants and its consultants closely to ensure that the requirements of Section 106 are being followed.
A federal agency may not delegate to an applicant or any other non-federal party its responsibility to consult with federally recognized Indian tribes on a government-to-government basis. The federal government’s responsibility to consult on a government-to-government basis with Indian tribes as sovereign nations is established through Executive Orders, Presidential memoranda, and other authorities, and is explicitly recognized by the ACHP’s regulation [36 CFR § 800.2(c)(2)(ii)(B) and (C);2 see also “Consulting with Indian Tribes in the Section 106 Review Process” at www.achp.gov/regs-tribes.html].
While consultation with Indian tribes is a federal responsibility, federal agencies and tribes may mutually agree to allow applicants to initiate and carry out such consultation during the course of Section 106 review. To avoid any later misunderstanding, the ACHP recommends federal agencies and Indian tribes to document such agreements in writing. Any deviation from the government-to-government relationship between the federal government and Indian tribes should be agreed to as early as possible in the Section 106 process, particularly in advance of any survey and testing actions to identify National Register-eligible archaeological sites.
In the absence of such an agreement, a lack of response from the tribe to such a solicitation should not be interpreted as a lack of interest in consultation or in providing information. Rather, the tribe may choose not to respond to a query from an applicant (or its consultant or contractor) because this contact does not meet the requirement of government-to-government consultation. In those cases where a tribe has not responded to an applicant or its representative, the federal agency must contact the tribe to initiate consultation and ascertain its interest.
Before any steps are taken in Section 106 review, the federal agency first must notify the SHPO/THPO that it is authorizing an applicant (or group of applicants) to initiate consultation [36 CFR § 800.2(c)(4)].3 By the time this notification is sent, the federal agency should have resolved how its government-to-government responsibilities will be fulfilled.
Following this notification, applicants and their authorized representatives may consult with the SHPO/THPO to initiate Section 106 review, identify and evaluate historic properties, and assess effects. The federal agency, however, remains responsible for participating in the consultation process when:
* initiating consultation with Indian tribes;
* it is determined that the Criteria of Adverse Effect apply to an undertaking;
* there is a disagreement between the applicant or their authorized representatives and the SHPO/THPO regarding identification and evaluation, and/or assessment of effects;
* there is an objection from a consulting party or the public regarding Section 106 findings and determinations, the implementation of agreed upon provisions, or their involvement in a Section 106 review; or
* there is the potential for a foreclosure situation or anticipatory demolition as specified in Section 110(k) of NHPA [36 CFR § 800.9(b) and (c)].4
In determining the scope of work for archaeological fieldwork where listed or eligible archaeological sites of significance to Indian tribes may be involved, the applicant is advised that the federal agency has a responsibility to gather information from such tribes [36 CFR § 800.4(a)(3) and (4)].5 Without this step, the identification effort might include measures an Indian tribe might consider inappropriate, insensitive, or insufficient. Therefore, the federal agency should ensure the applicant is aware of this requirement.
- (4) Applicants for Federal assistance, permits, licenses and other approvals. An applicant for Federal assistance or for a Federal permit, license or other approval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO/THPO and others, but remains legally responsible for all findings and determinations charged to the agency official. allow a federal agency to authorize an applicant (not consultants or contractors) for federal assistance, permits, licenses, or approvals to initiate Section 106 consultation. Under such an authorization, however, the federal agency maintains legal responsibility for all Section 106 findings and determinations, even though the applicant usually produces the documents and studies (including archaeological survey and testing reports) on which these decisions are based.
Federal agencies, as well as applicants, often rely on the services of consultants and contractors to prepare the information, analyses, recommendations, and studies needed during Section 106 review. Whenever a non-federal party prepares a Section 106 document or a study for review, the agency is responsible “for ensuring that its content meets applicable standards and guidelines” [36 CFR § 800.2(a)(3)].(3) Use of contractors. Consistent with applicable conflict of interest laws, the agency official may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part. The agency official remains legally responsible for all required findings and determinations. If a document or study is prepared by a non-Federal party, the agency official is responsible for ensuring that its content meets applicable standards and guidelines.
- B) The Federal Government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Nothing in this part alters, amends, repeals, interprets or modifies tribal sovereignty, any treaty rights, or other rights of an Indian tribe, or preempts, modifies or limits the exercise of any such rights. (C) Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes. The agency official shall consult with representatives designated or identified by the tribal government or the governing body of a Native Hawaiian organization. Consultation with Indian tribes and Native Hawaiian organizations should be conducted in a manner sensitive to the concerns and needs of the Indian tribe or Native Hawaiian organization.
- 4) Applicants for Federal assistance, permits, licenses and other approvals. An applicant for Federal assistance or for a Federal permit, license or other approval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO/THPO and others, but remains legally responsible for all findings and determinations charged to the agency official. The agency official shall notify the SHPO/THPO when an applicant or group of applicants is so authorized. A Federal agency may authorize all applicants in a specific program pursuant to this section by providing notice to all SHPO/THPOs. Federal agencies that provide authorizations to applicants remain responsible for their government to government relationships with Indian tribes.
- (b) Agency foreclosure of the Council's opportunity to comment. Where an agency official has failed to complete the requirements of section 106 in accordance with the procedures in this part prior to the approval of an undertaking, the Council's opportunity to comment may be foreclosed. The Council may review a case to determine whether a foreclosure has occurred. The Council shall notify the agency official and the agency's Federal preservation officer and allow 30 days for the agency official to provide information as to whether foreclosure has occurred. If the Council determines foreclosure has occurred, the Council shall transmit the determination to the agency official and the head of the agency. The Council shall also make the determination available to the public and any parties known to be interested in the undertaking and its effects upon historic properties. (c) Intentional adverse effects by applicants. (1) Agency responsibility. Section 110(k) of the act prohibits a Federal agency from granting a loan, loan guarantee, permit, license or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, has allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. Guidance issued by the Secretary pursuant to section 110 of the act governs its implementation.
- (3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking's potential effects on historic properties; and (4) Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c).