National Academies Press: OpenBook

Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law (2019)

Chapter: K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES

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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
×
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
×
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
×
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
×
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Suggested Citation:"K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES." National Academies of Sciences, Engineering, and Medicine. 2019. Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law. Washington, DC: The National Academies Press. doi: 10.17226/25514.
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58 NCHRP LRD 76 which mandate the development of statewide plans which “shall, at a minimum, consider…[t]he concerns of Indian tribal governments having jurisdiction over lands within the boundaries of the State.”663 In addition, with respect to areas of the state under Indian tribal government jurisdic- tion, ISTEA required that the long-range transportation plan be developed in consultation with the tribal government and the Secretary of the Interior.664 Finally, ISTEA added the requirement that the STIP be developed in similar con- sultation for areas of the state under the jurisdiction of an Indian tribal government.665 The planning requirements for states and Indian tribal governments coupled with increased funding for the IRR program—$191 million for years 1991to 1995—greatly increased the visibility of transportation issues in Indian country. Federal transportation bills in subsequent years continued to emphasize the importance of consultation with tribal govern- ments in the development of transportation plans. U.S. DOT regulations which apply to both FHWA and FTA programs pro- vide guidance on these requirements.666 For each area of the State under the jurisdiction of an Indian Tribal government, the State shall develop the long-range statewide trans- portation plan and STIP in consultation with the Tribal government and the Secretary of the Interior. States shall, to the extent practicable, develop a documented process(es) that outlines roles, responsibili- ties, and key decision points for consulting with Indian Tribal gov- ernments and Department of the Interior in the development of the long-range statewide transportation plan and the STIP.667 For each area of the State under the jurisdiction of an Indian Tribal government, the State shall develop the long-range statewide trans- portation plan in consultation with the Tribal government and the Secretary of the Interior consistent with §450.210(c).668 In carrying out the statewide transportation planning process, each State shall, at a minimum: […] Consider the concerns of Indian Trib- al governments that have jurisdiction over land within the boundar- ies of the State….669 For each area of the State under the jurisdiction of an Indian Tribal government, the STIP shall be developed in consultation with the Tribal government and the Secretary of the Interior.670 Where established, a [Regional Transportation Planning Organiza- tion (RTPO)] shall be a multijurisdictional organization of nonmet- ropolitan local officials or their designees who volunteer for such organization and representatives of local transportation systems who volunteer for such organization. […] The duties of an RTPO shall in- clude: […] (vii) Considering and sharing plans and programs with neighboring RTPOs, MPOs, and, where appropriate, Indian Tribal Governments.671 663 Id. § 1025(a), amending 23 U.S.C. § 135. Codified at 23 U.S.C. § 135(e)(2). 664 23 U.S.C. § 135(f)(2)(D). 665 Id. § 135(f)(2)(C). 666 Id. Part 450; 49 C.F.R. Part 613. 667 23 C.F.R. § 450.210(c). 668 Id. § 450.216(i). 669 Id. § 450.208. 670 Id. § 450.218(d). 671 Id. § 450.210(d). cal match; the competitive grant requires a 10 percent local match.658 K. PLANNING AND PROJECT DEVELOPMENT ACTIVITIES 1. Planning659 a. Transportation Planning to Include Tribal Governments660 In view of the sovereign status of the Indian tribes, it is important to recognize during planning and project devel- opment that a government-to-government relationship is being entered into when a state or local government plans a highway project on lands under the jurisdiction of Indian tribal governments. Congress underscored this component of transportation planning when it enacted ISTEA,661 first by defining “public authority” to include “Indian tribe,”662 and second by adding new statewide planning requirements 658 Federal Transit Administration, Public Transportation on Indian Reservations Program; Tribal Transit Program, https://www.transit.dot.gov/tribal-transit (accessed June 30, 2018). 659 See FHWA Website for Tribal Planning, available at https://flh.fhwa.dot.gov/programs/ttp/planning/ (accessed June 30, 2018). 660 At present, the FHWA/FTA environmental regulations in 23 C.F.R. Part 771, which prescribe the procedures for compliance with NEPA (42 U.S.C. §§ 4321-4347) exempt “regional” transportation plans from preparation of environmental analysis. 23 C.F.R. § 771.109(a)(1). While the Statewide Planning Regulations place great emphasis on, and establish requirements concerning, the envi- ronmental effects of transportation decisions, they do not mandate a NEPA environmental analysis. However, the Council on Environ- mental Quality (CEQ) regulations provide that “agencies shall inte- grate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts.” 40 C.F.R. § 1501.2. Given the importance to many Indian tribes of reversing the loss of tribal resources and preserving the integrity of tribal lands, state transportation planning and project development will necessitate the use of environmental inventorying. However, since NEPA documents are to be prepared before any irre- versible and irretrievable commitment of resources, any firm com- mitments prior to full NEPA compliance must be avoided. See Met- calf v. Daley, 214 F.3d 1135 (9th Cir. filed June 9, 2000) (EA/Fonsi in support of decision granting Makah Indian Tribe authorization to resume whaling was set aside because federal defendants had signed a contract obligating them to make a proposal to the International Whaling Commission for a gray whale quota and to participate in the harvest of those whales; Held: In making such a firm commit- ment before preparing an EA, the federal defendants failed to take a “hard look” at the environmental consequences of their actions and therefore violated NEPA.) See also Robert Miller, Exercising Cultural Self- Determination: The Mahah Indian Tribe Goes Whaling, 25 Am. Indian L. Rev. 165 (2001). 661 Pub. L. No. 102-240, 105 Stat. 1914 (Dec. 18, 1991). 662 Id. § 1005, amending 23 U.S.C. § 101: “The term ‘public authority’ means a Federal, State, county, town, or township, Indian tribe, municipal or other local government or instrumentality with authority to finance, build, operate, or maintain toll or toll-free facilities.”

NCHRP LRD 76 59 a. Operate within a government-to-government relation- ship with federally recognized tribal governments; b. Consult to the greatest extent practicable and permitted by law with Indian tribal governments before taking ac- tions that affect federally recognized tribes; c. Assess the impact of activities on tribal trust resources and assure that tribal interests are considered before the activities are undertaken; d. Remove procedural impediments to working directly with tribal governments on activities that affect trust property or governmental rights of tribes; e. To the extent permitted by law, design solutions and tai- lor federal programs as appropriate to address specific or unique needs of tribal communities; and f. Cooperate with other agencies to accomplish these goals. Following the April 29, 1994, Presidential Memorandum, program development guidance emphasized that FHWA/FTA field offices and the states should take every opportunity to encourage Indian tribes to become involved in the planning process, particularly in development of long-range plans.679 Subsequent guidance strongly encouraged FHWA division ad- ministrators to meet with tribal government officials and estab- lish dialogues with tribal governments leading to a better under- standing of transportation needs, cultural issues, and resource impacts, and resulting in added benefit to policy, planning, and the project development process.680 (3) FHWA Indian Task Force Report (February 4, 1998)681— The FHWA Indian Task Force Report of February 4, 1998, was issued to provide guidance regarding FHWA’s relationship with federally recognized tribal governments with respect to the Fed- eral Lands Highway and Federal-Aid Highway programs. Para- graph F of the report, entitled “Federal-aid Tribal Planning and Environmental Issues,” includes the following statement:682 Although traditionally environmental issues and processes have been handled in project development through the FHWA National Envi- ronmental Policy Act (NEPA) process, environmental issues are now being addressed to a greater degree in the transportation planning process. The groundwork for consideration of sensitive environmen- tal and community values is laid out during the planning process and continued during the project development process. In light of this, to 679 Memorandum from FHWA’s Associate Administrators for Program Development, Federal Lands Highway Program and Grants Management, to FHWA Regional Federal Highway Admin- istrators, Regional Federal Transit Administrators and Federal Lands Highway Division Engineers (Dec. 12, 1994). 680 Memorandum from the Federal Highway Administrator Kenneth R. Wykle to the FHWA Leadership Team, Subject: Action: Guidance on Relations with American Indian Tribal Governments, transmitting FHWA Indian Task Force Report dated Feb. 4, 1998 (Feb. 24, 1998). 681 Id. 682 Id. at 5. When the [Metropolitan Planning Area] includes Indian Tribal lands, the [Metropolitan Planning Organization] shall appropriately involve the Indian Tribal government(s) in the development of the metropolitan transportation plan and the TIP.672 C.F.R. Section 450.104 defines the key terms “consultation,” “cooperation,” and “coordination,” for purposes of the planning process as follows: Consultation  means that one or more parties confer with other identified parties in accordance with an established process and, prior to taking action(s), considers the views of the other parties and periodically informs them about action(s) taken. This definition does not apply to the “consultation” performed by the States and the Metropolitan Planning Organizations (MPOs) in comparing the long-range statewide transportation plan and the metropolitan transportation plan, respectively, to State and tribal conservation plans or maps or inventories of natural or historic resources.673 Cooperation  means that the parties involved in carrying out the transportation planning and programming processes work together to achieve a common goal or objective.674 Coordination  means the cooperative development of plans, programs, and schedules among agencies and entities with legal standing and adjustment of such plans, programs, and schedules to achieve general consistency, as appropriate.675 b. Executive Initiatives on Government-to-Government Relations There have been a series of executive branch initiatives on government-to-government relations. These initiatives, begin- ning with President Reagan in 1984, stemmed from a policy ini- tiated by President Nixon and are listed below.676 (1) Statement of Indian Policy of January 24, 1983677— Pledged a government-to-government relationship between the U.S. government and Indian tribes. (2) Presidential Memorandum of April 29, 1994: Gov- ernment-to-Government Relations with Native Ameri- can Tribal Governments.678—Directed all executive de- partments and agencies to implement activities affecting Indian tribal rights or trust resources “in a knowledge- able, sensitive manner respectful of tribal sovereignty,” mandating six guiding principles: 672 Id. § 450.316(c). 673 See id. §§ 450.216(j), 450.324(g)(1) and (g)(2). 674 Id. § 450.104. 675 Id. 676 “The terminology of a ‘government-to-government’ relationship that is based on a consultation process originated in the 1970s as part of the Tribal Self-Determination Policy initiated by President Nixon… embodied in a series of federal policy documents begun by President Reagan in 1984…,” NCAI/NCSL Models of Cooperation, infra note 870, at 33. 677 Presidential Indian Policy Initiatives, 19 Weekly Comp. Pres. Doc. 98, 99 (Jan. 24, 1983). 678 Title 3-The President, Government-to-Government Relations with Native American Tribal Governments, 59 Fed. Reg. 22,951 (May 4, 1994).

60 NCHRP LRD 76 fice of Management and Budget on the implementation of Executive Order 13175 across the executive branch based on the agency plans and status reports. 2. Environmental and Related Issues687 a. General In most instances federal law applies in Indian country. (See section C.2 for further discussion on federal jurisdiction in Indian country.) The BIA routinely addresses environ- mental matters as a part of its trust responsibility. There has been a great deal of litigation based on federal environmental law between states and tribes, often related to jurisdictional issues.688 Do not assume that a state environmental law is en- forceable in Indian country. When evaluating the applicability of a state environmental law in Indian country consider the jurisdictional complexities involved in enforcing state law in Indian country; these complexities are discussed at section C.3 b. NEPA Compliance689 The National Environmental Policy Act (NEPA) establishes a national policy for the protection and enhancement of the human environment. One of the continuing responsibilities of federal agencies under the Act is to “preserve important histor- ic, cultural, and natural aspects of our national heritage.”690 It requires an agency to prepare an Environmental Impact State- ment (EIS) for all “proposals for legislation and other major federal actions significantly affecting the quality of the human environment.”691 The Council on Environmental Quality (CEQ) regulations implementing NEPA provide agencies with specific guidelines for compliance.692 NEPA is silent on its applicabil- ity to Indian country and Indian tribal agencies, and the BIA initially took the position that it was not applicable to Indian 687 See generally, Deskbook, supra note 15, chap. 10, Environ- mental Regulation, at 687-739. 688 See generally, B. Kevin Gover and Jana L. Walker, Tribal Environmental Regulation, 36 Fed. B.J. 438 (1989); Deskbook, supra note 15, chap. 10, at 687-739. See also, State of Wash. Dep’t of Ecology v. U.S. Envtl. Prot. Agency, 752 F.2d 1465 (9th Cir. 1985), which addressed the issue of whether the Resource Conservation and Recovery Act (RCRA) authorizes state authority over tribal lands. 689 FHWA guidance can be found at FHWA’s Environmental Review Toolkit, https://www.environment.fhwa.dot.gov/nepa/nepa_projDev. aspx (accessed July 7, 2018). 690 42 U.S.C. § 4331(b)(4). 691 42 U.S.C. § 4332(2)(C). 692 See 40 C.F.R. §§ 1500–1508. As noted in National Indian Youth Council v. Watt, 664 F.2d 220, 224–25, (1981), CEQ was cre- ated by NEPA to advise the President on environmental policy. See 42 U.S.C. § 4342. A 1970 Presidential Order authorized CEQ to issue “guidelines” for the preparation of statements on proposals affecting the environment. See Andrus v. Sierra Club, 442 U.S. 347, 353 n.10, 99 S. Ct. 2335, 2339, 60 L. Ed. 2d 943. These guidelines were advi- sory. Id. at 356–57. A 1977 Presidential Order required CEQ to issue regulations for NEPA procedure. Id. at 357. The guidelines thus became mandatory. Id. at 357 and 358. the greatest extent practical and permitted by law, FHWA will ensure that during the transportation planning and FHWA NEPA processes, tribes are consulted and tribal concerns are considered for federally funded state transportation projects that impact tribal trust resourc- es, tribal communities or Indian interests…. (4) Presidential Executive Order 13084 of May 14, 1998: Consultation and Coordination with Indian Tribal Govern- ments.683—This first consultation and coordination Executive Order recognized that the United States continues to work with Indian tribes on a government-to-government basis to ad- dress issues concerning Indian tribal self-government, trust re- sources, and Indian tribal treaty and other rights. It ordered the establishment of regular and meaningful consultation and col- laboration with Indian tribal governments in the development of regulatory practices on federal matters that significantly or uniquely affect Indian communities. (5) Presidential Executive Order 13175 of November 6, 2000: Consultation and Coordination with Indian Tribal Governments.684—This Executive Order revoked and re- placed Executive Order 13084 and ordered the establish- ment of regular and meaningful consultation and collabo- ration with tribal officials in the development of federal policies that have tribal implications. “Policies that have tribal implications” refers to regulations, legislative com- ments or proposed regulation, and other policy statements or actions that have substantial direct effects on one or more Indian tribes, on the relationship between the federal gov- ernment and Indian tribes, or on the distribution of power and responsibilities between the federal government and In- dian tribes. (6) Presidential Executive Order 13336 and Memoran- dum to Heads of Executive Departments and Agencies Entitled: Government-to-Government Relationships with Tribal Governments, dated September 23, 2004685.—This Executive Order adopted a national policy of self-deter- mination for Indian tribes and committed the adminis- tration to continuing work with federally recognized tribal governments on a government-to-government basis. (7) Presidential Memorandum of November 5, 2009: Mem- orandum for the Heads of Executive Departments and Agen- cies.686 —This Memorandum directed agency heads to submit detailed plans of action to implement Executive Order 13175 in consultation with Indian tribes along with annual reports on the status of each plan. It required agen- cies to designate an official to coordinate implementation of the plan and prepare the required progress reports. Ad- ditionally, it required a report within a year from the Of- 683 Title 3-the President, Consultation and Coordination with Indian Tribal Governments, 3 Fed. Reg. 27,655 (May 19, 1998). 684 Title 3-the President, Consultation and Coordination with Indian Tribal Governments 65 Fed. Reg. 67,249 (Nov. 9, 2000). 685 Presidential Executive Order 13336, 69 Fed. Reg. 25,294 (Apr. 30, 2004) 686 Tribal Consultation, 74 Fed. Reg. 57,879 (Nov. 9, 2009).

NCHRP LRD 76 61 purpose of the project was to provide a significant economic de- velopment opportunity for the tribe, the range “need not extend beyond those alternatives reasonably related to the purposes of the project.”702 The court found that although the BIA did not consider landfill sites off the reservation, it did properly con- sider and analyze a reasonable range of alternatives on the res- ervation for meeting the goals of the project, thus meeting the requirements of NEPA.703 • Muckleshoot Indian Tribe v. U.S. Forest Service704 was a challenge to a land exchange in which the Forest Ser- vice would transfer to the Weyerhaeuser Company land used historically and presently by the Tribe for cultural, religious, and resource purposes. The Tribe claimed that the EIS failed to consider the cumulative impact of the ex- change, as required by CEQ regulation 40 C.F.R. § 1508.7, and failed to consider an adequate range of alternatives. The court held that “…the cumulative impact statements that are provided in the EIS are far too general and one- sided to meet NEPA requirements…[and] Forest Service violated NEPA by failing to consider a range of appropriate alternatives to the proposed exchange.”705 • Colorado River Indian Tribes v. Marsh706 was a challenge to a permit the U.S. Army Corps of Engineers issued to a pri- vate developer for placement of riprap along a riverbank with- out preparing an EIS. The developer proposed to construct single-family homes and commercial facilities on land situated between a major highway and the river and adjacent to land containing several recorded significant cultural and archaeo- logical sites. The Army Corps retracted its Draft EIS, which had found significant impacts to the adjacent land, and limited the scope of its environmental assessment to activities within its defined jurisdiction. The court held that, “In limiting the scope of its inquiry, the Corps acted improperly and contrary to the mandates of NEPA…. The Corps should have analyzed the in- direct effects of the bank stabilization on both ‘on site’ and ‘off site’ locations.”707 702 Babbitt, 847 F. Supp. at 776. 703 Id. 704 177 F.3d 800 (9th Cir. filed May 19, 1999). 705 Id. at 811–12. 706 605 F. Supp. 1425 (C.D. Cal. 1985). 707 Id. at 1433. country, since only federal approvals were involved. In Davis v. Morton,693 the Court of Appeals for the Tenth Circuit addressed the applicability of NEPA to the BIA approval of a 99-year lease on the Tesuque Indian Reservation in Santa Fe County, New Mexico. The Court of Appeals held as follows: “We conclude ap- proving leases on federal lands constitutes major federal action and thus must be approved according to NEPA mandates. As our court had occasion to consider once before, this Act was intended to include all federal agencies, including the Bureau of Indian Affairs.”694 After this ruling, the BIA, in cooperation with the various Indian tribes, began preparing environmental analyses in com- pliance with NEPA. The BIA has issued a NEPA handbook to provide guidance to BIA personnel and others who seek to use Indian lands that are subject to federal approval. Generally, the BIA would be the jurisdictional agency, but it may also act as a “cooperating agency” with another federal agency, such as FHWA or FTA, who is acting as “lead agency,” under the CEQ regulations.695 The CEQ regulations mandate that the lead agen- cy invite “the participation of…any affected Indian tribe” in the scoping process.696 A tribe, although lacking approval authority, may still be a cooperating agency, which would assure its direct involvement throughout the NEPA process.697 The following cases dealing with NEPA compliance relative to Indian lands are noteworthy: • Manygoats v. Kleppe:698 holding that individual members of an Indian tribe can challenge the adequacy of an EIS without joinder of the tribe. 699 • County of San Diego v. Babbitt700 examined the CEQ regu- lation requiring agencies to “[r]igorously explore and objective- ly evaluate all reasonable alternatives.”701 The county challenged the adequacy of an EIS for construction of a solid waste dis- posal facility on the Campo Band of Mission Indians Reserva- tion for, among other things, the failure to consider alternative sites off of the reservation. The district court held that since the 693 469 F.2d 593 (10th Cir. 1972). 694 Id. at 597–98. See also Nat’l Helium Corp. v. Morton, 455 F.2d 650 (10th Cir. 1971). Accord, Cady v. Morton, 527 F.2d 786 (9th Cir. 1975) (Approval of coal leases constituted a “major federal action” requiring an EIS). 695 40 C.F.R. pt 1500, §§ 1501.5, 1501.6. 696 Id. § 1501.7(a). 697 See Id. § 1508.5, which provides, in part: “A State or local agency of similar qualifications or, when the effects are on a reserva- tion, an Indian Tribe, may by agreement with the lead agency become a cooperating agency.” 698 558 F.2d 556 (10th Cir. 1977). 699 The EIS covered the proposed BIA approval of an agreement between the Navajo Tribe and Exxon for mining leases. The Court noted that “dismissal of the action for nonjoinder of the Tribe would produce an anomalous result. No one, except the Tribe, could seek review of an [EIS] covering significant federal action…. NEPA is concerned with national environmental interests. Tribal interests may not coincide with national interests….” Id. at 559. 700 847 F. Supp. 768 (S.D. Cal. 1994). 701 40 C.F.R. § 1502.14.

62 NCHRP LRD 76 The Act is merely a statement of the policy of the federal government with respect to traditional Indian religious practices…. This court has concluded that with respect to the free exercise rights of plain- tiffs, the conduct of defendants complied with the dictates of the first amendment. The American Indian Religious Freedom Act requires no more.713 In Wilson v. Block,714 the Court of Appeals for the D.C. Circuit further interpreted AIRFA in the context of NEPA compliance.715 In that case, the Hopi and Navajo Indian Tribes challenged the Forest Service’s permitted expansion of the government-owned Snow Bowl ski area on the San Fran- cisco Peaks in Coconino National Forest on the grounds that it would interfere with the religious ceremonies and practices of their people. The tribes contended that AIRFA “proscribes all federal land uses that conflict or interfere with traditional Indian religious beliefs or practices, unless such uses are jus- tified by compelling government interests.”716 The court of appeals declined to give such a broad reading to AIRFA, but recognized a duty under NEPA: Thus AIRFA requires federal agencies to consider, but not neces- sarily defer to, Indian religious values. It does not prohibit agen- cies from adopting all land uses that conflict with traditional In- dian religious beliefs or practices. Instead, an agency undertaking a land use project will be in compliance with AIRFA if, in the decision-making process [NEPA], it obtains and considers the views of Indian leaders, and if, in project implementation, it avoids unnecessary interference with Indian religious practices…. [W]e find that the Forest Service complied with AIRFA…[because]… views expressed [by Indian leaders] were discussed at length in the [Final Environmental Statement] and were given due consid- eration in the evaluation of the alternative development schemes proposed for Snow Bowl.717 The Supreme Court addressed AIRFA in Lyng v. Northwest Indian Cemetery Protective Association,718 in which the Forest Service’s road building and timber harvesting decisions were challenged by an Indian organization, individual Indians, a 713 Crow v. Gullet, 541 F. Supp. 785, 793 (D.S.D. 1982), (citing Hopi Indian Tribe v. Block, 8 ILR 3073, 3076(D.D.C. 1981)), affirmed, 706 F.2d 856 (8th Cir. 1983). Canby, supra note 5, at 392- 93, points out that: Several controversies have involved attempts by government to develop its public lands in a manner that adversely affects Indian religious practices. Initially, the lower courts resolved such controversies by balancing the governmental interest in developing the particular project against the burden it placed on Indian religion. The balancing nearly always came out in favor of the government. The courts rejected, for example, Indian attempts to prevent the government from inundating sacred places upstream from federal dams. Badoni v. Higgin- son, 638 F.2d 172 (10th Cir. 1980); Sequoyah v. TVA, 620 F.2d 1159 (6th Cir. 1980). They also rejected attempts to pre- vent expansion of a ski area on a sacred mountain…Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983), and the establishment of a state park in sacred ground, Crow v. Gullet, 706 F.2d 856 (8th Cir. 1983). 714 Wilson v. Block, 708 F.2d 735 (D.C. Cir. 1983). 715 Id. at 747. 716 Id. at 745. 717 Id. at 747. 718 485 U.S. 439, 108 S. Ct. 1319, 99 L. ed. 2d 534 (1988). c. Laws Addressing Cultural and Religious Concerns708 In addition to environmental laws, the following federal laws and legal issues should be considered when planning a project on or near Indian lands. Consultation with the Indian tribe is either mandated or recommended in each instance.709 (1) American Indian Religious Freedom Act (AIRFA) and First Amendment Free Exercise and Establishment Issues.710— AIRFA provides: On or after August 11, 1978 it shall be the policy of the United States to protect and preserve for the American Indian, Eskimo, Aleut, and Native Hawaiian the inherent right of freedom to believe, express, and exercise their traditional religions, including but not limited to access to religious sites, use and possession of sacred objects, and freedom to worship through ceremonies and traditional rites. Petoskey notes that “since the late 1970s a new issue in First Amendment law has confronted the federal judiciary [as] American Indians are increasingly making claims to the pro- tection of the First Amendment for their religious practices in opposition to the decisions of federal land managers.”711 Canby observes that: Enforcement of the right of free exercise of religion often takes a distinctive turn when Indians are involved. Many Indian religious beliefs and practices center on particular places or objects. The places may be on federal lands outside of any reservation. The ob- jects may be eagle feathers or peyote. In these cases, federal man- agement or regulation may interfere substantially with religious uses. In recognition of this problem, Congress in 1978 passed an unusual statute called the “American Indian Religious Freedom Act [AIRFA].”712 In one of the early cases construing AIRFA, a federal district court concluded that the Act did not create a cause of action in federal courts for violation of rights of religious freedom: 708 See generally, Canby, supra note 5, at 391-403; Marcia Yablon, Property Rights and Sacred Sites: Federal Regulatory Responses to American Indian Religious Claims on Public Land, 113 Yale L.J. 1623 (2004); David S. Johnston, The Native American Plight: Protection and Preservation of Sacred Sites, 8 Widener L. Symp. J. 443 (2002) (hereinafter Johnston). Lydia T. Grimm, Sacred Lands and the Establishment Clause: Indian Religious Practices on Federal Lands, 12 Nat. Res. & Env’t 19–78 (1997); John Petoskey, Indians and the First Amendment, in American Policy in The Twentieth Century, 221–37 (3d. ed. 1985). 709 The National Park Service is in the process of developing an online tool for Native American Graves Protection and Repatriation Act (NAGPRA), Pub. L. 101-601, 104 Stat. 3048 (codified at 25 U.S.C. §§3001-3012), consultation. While that tool is being developed, the National Park Service website links to the Bureau of Indian Affairs Tribal Leaders Directory and the National Park Service’s Tribal Historic Preservation Officer databases as well as a NAGPRA tribal contacts website. This information can be accessed at: https://www.nps.gov/nag- pra/onlinedb/index.htm (accessed June 23, 2018). 710 The Free Exercise Clause of the first Amendment provides that “Congress shall make no law…prohibiting the free exercise [of religion].” U.S. CONST. amend. 1. 711 Petoskey, supra note 709, at 221. 712 Canby, supra note 5, at 391.

NCHRP LRD 76 63 The Court’s decision, despite closing the door on Free Ex- ercise claims, cautioned that “[n]othing in our opinion should be read to encourage governmental insensitivity to the religious needs of any citizen. The Government’s rights to use its own land, for example, need not and should not discourage it from accommodating religious practices like those engaged in by the Indian respondents. Cf. Sherbert, 374 U.S., at 422–23.724” Executive Order No. 13007, “Indian Sacred Sites,”725 di- rected federal agencies “to the extent practicable, permitted by law, and not clearly inconsistent with essential agency functions, to (1) accommodate access to ceremonial use of Indian sacred sites by Indian religious practitioners and (2) avoid adversely affecting the physical integrity of such sacred sites.”726 This Executive Order is said to have filled a gap in AIRFA “by requiring federal agencies to avoid harming the physical integrity of such sacred sites.”727 One commentator observes that since Lyng, “agencies like the Park Service, the Forest Service, and the Bureau of Land Management have all increasingly sought ways to protect many of the Indian sa- cred sites located on federal lands and to accommodate the religious and cultural practices associated with them.”728 The protection of Indian cultural and religious sites can lead to challenges based on the First Amendment’s Establishment Clause. For example, in Bear Lodge Multiple Use Association v. Babbitt,729 the Court reviewed an Establishment Clause chal- lenge brought by a climbers’ group to a National Park Service plan to ask the public to voluntary refrain from climbing at Devil’s Tower. Devil’s Tower is a National Monument, as well as the place of creation and religious practice for many American Indians. The court dismissed the claim for lack of standing be- cause the climbing group could not show injury in fact, thus ef- fectively upholding the policy. The district court decision under review had concluded that a government policy benefiting Na- tive American tribes did not constitute excessive entanglement with religion because “Native American tribes…are not solely religious organizations, but also represent common heritage and culture.”730 Cholla Ready Mix v. Civish731 was an Establishment Clause challenge in a highway case. The decision upholds the efforts of the Arizona Department of Transportation (ADOT) to discour- age the use of materials from Woodruff Butte, Arizona, in state construction projects because of the Butte’s religious, cultural, and historical significance to the Hopi Tribe, Zuni Pueblo, and Navajo Nation. ADOT had previously allowed materials mined from the Butte to be used in state highway construction projects 724 Id. at 453-54 (Harlan J. dissenting). 725 61 Fed. Reg. 26,771 (May 24, 1996). 726 Id at 26,771. 727 Johnston, supra note 708, at 459, citing Grimm, supra note 708. 728 Yablon, supra note 708, at 1638. 729 175 F.3d 814 (10th Cir. filed Apr. 26, 1999). 730 Bear Lodge Multiple Use Association v. Babbitt, 2 F. Supp. 2d 1448, 1456 (D. Wyo. 1998). 731 382 F.3d 969 (9th Cir. 2004). nature organization, and others based on alleged violations of the First Amendment’s Free Exercise Clause. The road project covered a six-mile paved segment through the Chimney Rock section of the Six Rivers National Forest and was situated be- tween two other portions of the road which had already been completed.719 A Forest Service–commissioned study found that the entire area “is significant as an integral and indispensable [sic] part of Indian religious conceptualization and practice.” Specific sites are used for certain rituals, and “successful use of the [area] is dependent upon and facilitated by certain qualities of the physical environment, the most important of which are privacy, silence, and an undisturbed natural setting.” The study concluded that constructing a road along any of the available routes “would cause serious and irreparable damage to the sa- cred areas which are an integral and necessary part of the belief systems and lifeways of Northwest California Indian peoples.” The report recommended that the road not be completed.720 The Forest Service decided not to adopt this recommendation and prepared a final EIS for construction of the road, selecting a route that avoided archaeological sites and was located as far as possible from the sites used by contemporary Indians for spe- cific spiritual activities.721 Justice O’Connor, writing for the majority, noted that “[e] xcept for abandoning its project entirely, and thereby leaving the two existing segments of road to dead-end in the middle of the National Forest, it is difficult to see how the Government could have been more solicitous,” finding that [s]uch solicitude ac- cords with the policy expressed in AIRFA, and further finding that “[n]owhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights.”722 In addressing the First Amendment challenge, the Court’s ruling rejected balancing of interests as inappropriate. The Court stated: [I]ncidental effects of government programs, which may make it more difficult to practice certain religions but which have no tenden- cy to coerce individuals into acting contrary to their religious beliefs, do not require government to bring forward a compelling justification for its otherwise lawful actions. The crucial word in the constitutional text is “prohibit”: “For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government.” [citation omit- ted]. Even if we assume that…the G-O road will “virtually destroy the Indians’ ability to practice their religion,” the Constitution simply does not provide a principle that could justify upholding respondent’s legal claims…. The first amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion…. Whatever rights the Indi- ans have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land. Cf. Bowen v. Roy, 476 U.S., at 724–727.723 719 Id. at 442. 720 Id. at 443. 721 Id. 722 Id. at 455. 723 Id. at 450–53 (1988).

64 NCHRP LRD 76 Buono v. Norton, 371 F.3d 543, 548-50 (9th Cir. 2004).”735 Fi- nally, on the “excessive entanglement” issue, the Court found that the “facts alleged cannot support the conclusion that de- fendant’s actions excessively entangle the government with the Tribes’ religions.”736 (2) National Historic Preservation Act of 1966 (NHPA).737— NHPA addresses the preservation of “historic properties,” which are defined in the Act as “any prehistoric or historic dis- trict, site, building, structure, or object included on, or eligible for inclusion on, the National Register, including artifacts, re- cords, and material remains relating to the district, site, building, structure, or object.”738 Section 106739 requires federal agencies to take into account the effects of an undertaking on historic properties and to afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. In some cases, properties may be eligible in whole or in part because of historical importance to Native Americans, including traditional religious and cultural importance.740 The 1992 Amendments to NHPA require all federal agencies to con- 735 The court of appeals noted that the: Establishment Clause does not require governments to ignore the historical value of religious sites. Native American sacred sites of historical value are entitled to the same protec- tion as the many Judeo-Christian religious sites that are pro- tected on the NRHP [National Register of Historic Places], including the National Cathedral in Washington, D.C.; the Touro Synagogue, America’s oldest standing synagogue, ded- icated in 1763; and numerous churches that played a pivotal role in the Civil Rights Movement, including the Sixteenth Street Baptist Church in Birmingham, Alabama. Id at 976. 736 The Court, noting that the “only fact alleged relevant to entanglement is that the Tribes were consulted in the process of evaluating Cholla’s application for a commercial source number.” Id. at 976-77. The Court found that: Some level of interaction between government and reli- gious communities is inevitable; entanglement must be “excessive” to violate the Establishment Clause. Agonstini v. Felton, 521 U.S. 203, 233 (1997); KDM ex rel. WJM v. Reedsport School Dist., 196 Fed. 3d 1046, 1051 (9th Cir. 1999) (noting that courts consistently find that routine administrative contacts with religious groups do not create excessive entanglement). The institutions benefited here, Native American tribes, are not solely religious in character or purpose. Rather, they are ethnic and cultural in character as well. See, Bear Lodge Multiple Use Ass’n v. Babbitt, 2 F. Supp. 2d 1448, 1456 (D. Wyo. 1998) (concluding that a gov- ernment policy benefiting Native American tribes did not constitute excessive entanglement with religion because “Native American tribes…are not solely religious organiza- tions, but also represent a common heritage and culture”). Id. at 977. 737 Pub. L. No. 89-665, 80 Stat. 915 (codified at 54 U.S.C. § 300101-320303). 738 54 U.S.C. § 300308 (formerly 16 U.S.C. § 470w). 739 54 U.S.C. § 306108 (formerly 16 U.S.C. § 470f). 740 FHWA guidance on historic preservation, “Tribal Issues,” avail- able at http://environment.fhwa.dot.gov/histpres/tribal.htm (accessed June 16, 2018). which had led to litigation involving the tribes, Cholla Ready Mix, ADOT, and the FHWA.732 In 1999, ADOT promulgated new commercial source regulations, which required each appli- cant for a commercial source number to submit an environmen- tal assessment that considered adverse effects on places eligible for listing on the National Register of Historic Places (NRHP). Woodruff Butte was declared eligible for listing on the NRHP in or around 1990. On June 26, 2000, ADOT denied Cholla Ready Mix’s application for a new commercial source number because of the projected adverse effects on Woodruff Butte. Cholla Ready Mix filed suit alleging that the policy against using ma- terials from the Butte in state construction projects violated its rights under the Establishment Clause of the First Amendment. The district court granted defendant’s motion to dismiss. On appeal, the court of appeals found that the Establishment Clause claim was premised on a flawed analysis of the governing law. In outlining the governing law the court stated this: Government conduct does not violate the Establishment Clause if (1) it has a secular purpose, (2) its principal or primary effect is not to advance or inhibit religion, and (3) it does not foster excessive gov- ernment entanglement with religion. See, e.g. Lemon v. Kurtzmon, 403 U.S. 602, 612-13 (1971). Particular attention is paid to whether the challenged action has the purpose or effect of endorsing religion. County of Allegheny v. ACLU, 492 U.S. 573, 592 (1989).733 The court found that ADOT’s “actions have the secular pur- pose of carrying out state construction projects in a manner that does not harm a site of religious, historical, and cultural importance to several Native American groups and the nation as a whole.”734 As to the “primary effect” issue, the court found that ADOT’s policy “does not convey endorsement or approval of the Tribes’ religions. See County of Allegheny, 492 U.S. at 592; 732 According to Cholla Ready Mix’s complaint, ADOT faced years of controversy about the destruction of Woodruff Butte. A fed- eral district court in previous litigation awarded the Hopi Tribe a preliminary injunction requiring consultation with the tribe before spending federal funds on a construction project using materials from Woodruff Butte because of the Butte’s historical and cultural importance. The court did not rule that FHWA must engage in the Section 106 process for every possible material source site prior to the authorization of federal funds for an undertaking; however, the court did hold that once it became known that Woodruff Butte would be used as a materials source site, the FHWA was required to comply with the procedures set forth in 36 C.F.R. § 800.11 for Sec- tion 106. Id. at 975-76. 733 Id. at 975. 734 The court of appeals noted that the secular purpose prong “does not mean that the law’s purpose must be unrelated to reli- gion—that would amount to a requirement that the government show a callous indifference to religious groups.” Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987) Id. at 975. The Court added that: carrying out government programs to avoid interference with a group’s religious practices is a legitimate, secular pur- pose. Id.; Kong v. Scully, 341 F.3d 1132, 1140 (9th Cir. 2003) (“Accommodation of a religious minority to let them practice their religion without penalty is a lawful secular purpose.”); Mayweathers v. Newland, 314 F.3d 1062, 1068 (9th Cir. 2002). Id.

NCHRP LRD 76 65 SHPO participate in the Section 106 process in addition to the THPO.750 A programmatic agreement can only take effect on tribal lands when the THPO, tribe, or designated representative of the tribe signs the agreement.751 Off of tribal lands, the tribe must be consulted for any under- takings that affect a historic property the tribe attaches religious and cultural significance to.752 The agency official has to make “a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of poten- tial effect and invite them to be consulting parties.”753 For under- takings off of tribal lands, the THPO does not take the place of the SHPO, but may serve as the tribe’s designated representative in the consultation process if the tribe designates the THPO for this role.754 The following cases dealing with NHPA compliance relative to Indian lands are noteworthy:755 • Apache Survival Coalition v. United States756 was an action to halt construction of several telescopes on Mount Graham, Arizona, within the Coronado National Forest, based upon, inter alia, violation of NHPA’s obligation to undertake an ad- ditional Section 106 process when new and significant infor- mation is brought to the attention of the federal agency.757 The court of appeals ruled that the laches standard used in NEPA cases applied to this NHPA claim.758 It concluded “that the six year period between 1985 when the Tribe first was solicited for 750 Id. § 800.3(c)(1). 751 Id. § 800.14(b)(2)(iii). 752 Id. § 800.2 (c)(2)(ii). 753 Id. § 800.3(f)(2). 754 The ACHP has a number of resources related to consultation with Indian tribes available on its website at www.achp.gov under the “Preservation Programs & Policies” section at the heading “Indian Tribes & Native Hawaiians.” 755 The consultation requirements of NHPA gained national atten- tion recently in litigation over the Dakota Access Pipeline. The pipeline ran primarily over private land—not subject to federal permitting requirements or NHPA requirements—but did traverse some federal waters requiring limited federal permits and compliance with NHPA requirements in those areas. The route does not run through the Stand- ing Rock Reservation but does run through areas of cultural signifi- cance to the tribe, thus necessitating tribal consultation in the areas subject to NHPA requirements. Claims that NHPA’s consultation requirements had not been complied with were ultimately unsuccess- ful. The court’s orders in these cases provide additional insight into the underlying dispute and NHPA’s consultation requirements. See, Stand- ing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock I), 205 F. Supp. 3d 4, 12-15 (D.D.C. 2016); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock II), 239 F. Supp. 3d 77, 81 (D.D.C. 2017); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock III), 255 F. Supp. 3d 101 (D.D.C. 2017); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock IV), 282 F. Supp. 3d 91 (D.D.C. 2017); Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs (Standing Rock V), 280 F. Supp. 3d 187, (D.D.C. 2017); Standing Rock Sioux Tribe v. United States Army Corps of Eng’rs, 301 F. Supp. 3d 50 (D.D.C. 2018). 756 21 F.3d 895 (9th Cir. filed Apr. 8, 1994). 757 36 C.F.R. § 800.11(b)(2). 758 Apache Survival Coalition, 21 F.3d at 906. sult with Indian tribes741 or Native Hawaiian organizations for undertakings that may affect properties of traditional re- ligious and cultural significance on or off tribal lands. The Section 106 regulations742 implementing the NHPA were last revised on December 12, 2000,743 and reflect these require- ments. Section 36 C.F.R. § 800.2(c)(2)(ii)(A) provides that The agency officia1744 shall ensure that consultation in the section 106 process provides the Indian tribe…a reasonable opportu- nity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and par- ticipate in the resolution of adverse effects. It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes…that shall be consulted in the section 106 process. Consultation should commence early in the planning process, in order to identify and discuss relevant preservation is- sues and resolved concerns about the confidentiality of informa- tion on historic properties. What consultation with the tribe looks like in the Sec- tion 106 process depends upon whether the undertaking is on tribal lands and whether the tribe has a Tribal Historic Preservation Officer (THPO). The federal regulations for the Section 106 process define “Tribal Historic Preservation Offi- cer” as “the tribal official appointed by the tribe’s chief govern- ing authority or designated by a tribal ordinance or preserva- tion program who has assumed the responsibilities of the SHPO [State Historic Preservation Officer] for purposes of section 106 compliance on tribal lands in accordance with section 101(d) (2)745 of the act.”746 “Tribal lands” for purposes of Section 106 are defined as “all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities.”747 For undertakings on tribal lands where the tribe has a THPO, the THPO is consulted in lieu of the SHPO.748 For undertakings on tribal lands where the tribe does not have a THPO, both the SHPO and the tribe’s designated representa- tive are consulted. A tribe without a THPO has the same right of consultation and concurrence as a tribe with a THPO.749 An owner of property on tribal land that is not owned by a trib- al member or held in trust for the tribe can request that the 741 NHPA defines “Indian Tribe” as “an Indian tribe, band, nation, or other organized group or community, including a Native village, Regional Corporation or Village Corporation (as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602)), that is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” (54 U.S.C. § 300309, formerly 16 U.S.C. § 470w). 742 36 C.F.R. pt. 800. 743 Protection of Historic Properties, 65 Fed. Reg. 77698, 77725 (Dec. 12, 2000). 744 36 C.F.R. § 800.2(a) provides that “The agency official may be a State, local, or tribal government official who has been delegated responsibility for compliance with section 106….” 745 54 U.S.C. § 302702. 746 36 C.F.R. § 800.16 (w). 747 Id. § 800.16 (x). 748 Id. § 800.2 (c)(2)(i)(A). 749 Id. § 800.2(c)(2)(i)(B).

66 NCHRP LRD 76 regulations warning that tribes might be hesitant to divulge the type of information sought.766 The decision stated that by “withholding relevant informa- tion from the SHPO during the consultation process…the For- est Service further undermined any argument that it had en- gaged in a good faith effort,”767 holding that “the Forest Service did not make a good faith effort to identify historic properties in Las Huertas Canyon.”768 • Hoonah Indian Association v. Morrison769 dealt with what constitutes a historic “site” under NHPA. The question was whether the route, or routes, a clan of the Tlingits Indians, the Kiks.adi, followed when retreating from a battle with Russia in 1804 should have been listed by the Forest Service as a cultural site on the NRHP.770 The SHPO determined that the Survival March Trail (designated in the record as the “Kiks.adi Survival March”) was not eligible because it did not meet established cri- teria that “it have identified physical features” and that it be “a location where the people regularly returned to.”771 The court of appeals found that “[t]he Forest Service followed the regulations and used the National Register criteria…[and] [t]hose criteria do not support the Tribe’s position.”772 The decision noted: “That important things happened in a general area is not enough to make the area a ‘site.’ There has to be some good evidence of just where the site is and what its boundaries are, for it to qualify for federal designation as a historical site.”773 • Muckleshoot Indian Tribe v. U.S. Forest Service 774 in- volved a challenged land exchange in the area of Huckleberry Mountain.775 The NHPA issue was whether the Forest Service had adequately mitigated the adverse effect of transferring in- tact portions of the Divide Trail, a 17.5-mile historic aboriginal transportation route.776 The regulations offer three options to mitigate adverse effects, two of which were available to the For- est Service on this trail: (1) Conduct appropriate research “[w] hen the historic property is of value only for its potential con- tribution to archeological, historical, or architectural research, and when such value can be substantially preserved through 766 Id. at 860. The court of appeals noted that the Forest Service received communications clearly indicating why more specific responses were not forthcoming. “At the meeting with the San Felipe Pueblo, tribal members indicated that ‘they did not want to disclose any specific details of the site locations or activities.’” The Court went on to note that “this reticence to disclose details of their cultural and religious practices was not unexpected. National Register Bulletin 38 warns that ‘knowledge of traditional cultural values may not be shared readily with outsiders’ as such information is ‘regarded as powerful, even dangerous’ in some societies.” Id. at 861. 767 Id. at 862. 768 Id. 769 170 F.3d 1223 (9th Cir. filed Mar. 24, 1999). 770 Id. at 1230. 771 Id. at 1231. See 36 C.F.R. § 800.4(c)(3). 772 Id. 773 Id. at 1232. 774 177 F.3d 800, 804 (9th Cir. 1999). 775 Id. at 804. 776 Id. at 808. input, and the date of filing suit constitutes unreasonable de- lay,” barring the claim for laches.759 The decision noted that “the very information that the Coalition now wants the Forest Ser- vice to consider—the asserted importance of Mount Graham to San Carlos Apache religious practices and culture—would have been brought to the agency’s attention by the Tribe had it not consistently ignored the NHPA process.”760 • Pueblo of Sandia v. United States 761 considered whether the Forest Service made a “reasonable and good faith effort to iden- tify historic properties that may be affected by the undertaking and gather sufficient information to evaluate the eligibility of these properties for the National Register.”762 The challenge was to the Forest Service undertaking to realign and reconstruct Las Huertas Canyon Road, which lies in the Cibola National Forest, New Mexico, near the Sandia Pueblo reservation. The canyon is visited by tribal members to gather evergreen boughs, herbs, and plants used in cultural ceremonies and traditional healing practices, and it contains many shrines and ceremonial paths of religious and cultural significance to the Pueblo.763 The Pueblo alleged that the Forest Service failed to comply with NHPA when it refused to evaluate the canyon as a traditional cultural property eligible for inclusion on the National Register of His- toric Places (NRHP).764 The State Historic Preservation Officer (SHPO) initially concurred in the Forest Service’s conclusion of ineligibility for the National Register, but later, upon learning that the Forest Service had withheld important information, withdrew his concurrence, recommending further evaluation.765 The court of appeals noted that the Forest Service requested information from the Sandia Pueblo and other local Indian tribes, but stated that [A] mere request for information is not necessarily sufficient to con- stitute the ‘reasonable effort’ section 106 requires. Because communi- cations from the tribes indicated the existence of traditional cultural properties and because the Forest Service should have known that tribal customs might restrict the ready disclosure of specific informa- tion, we hold that the agency did not reasonably pursue the informa- tion necessary to evaluate the canyon’s eligibility for inclusion in the National Register…. We conclude…that the information the tribes did communicate to the agency was sufficient to require the Forest Service to engage in further investigations, especially in light of the 759 Id. at 910. 760 Id. at 911–12. 761 50 F.3d 856 (10th Cir. 1995). 762 36 C.F.R. § 800.4(b). 763 Pueblo of Sandia, 50 F.3d at 857. 764 Id. at 858. 765 Id. at 858–59.

NCHRP LRD 76 67 [I]dentification and appropriate disposition of human remains, fu- nerary objects, sacred objects, or objects of cultural patrimony that are: (i) In Federal possession or control; or (ii) In the possession or control of any institution or State or local government receiving Federal funds; or (iii) Excavated intentionally or discovered inadvertently on Federal or tribal lands.785 “Tribal lands” for purposes of NAGRA means all lands which: (i) Are within the exterior boundaries of any Indian reservation including, but not limited to, allotments held in trust or subject to a restriction on alienation by the United States; or Com- prise dependent Indian communities as recognized pursuant to 18 U.S.C. 1151; or (iii) Are administered for the benefit of Native Hawai- ians pursuant to the Hawaiian Homes Commission Act of 1920 and section 4 of the Hawaiian Statehood Admission Act (Pub.L. 86-3; 73 Stat. 6).”786 The statute defines “federal lands” as “any land other than tribal lands which are controlled or owned by the United States.”787 NAGPRA requires consultation with Indian tribes to address repatriation and disposition of remains and objects governed by the Act and requires consultation when remains or objects governed by the Act are intentionally excavated or inadvertently discovered.788 FHWA offers the following information on NAG- PRA as part of its Environmental Review Toolkit as related to Tribal Consultation: The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) requires agencies to consult with Indian tribes regard- ing planned activities on Federal and tribal land that might result in the excavation of Native American human remains or other cultural items as defined in NAGPRA. When there is an inadvertent discovery of human remains or cultural items on Federal or tribal lands, work in the area must cease, the land-managing agency must notify the ap- propriate tribe(s), and consultation must be initiated. On tribal lands, the consent of the appropriate Indian tribe is required for planned excavation or removal human remains and cultural items. Because FHWA is not a land-managing agency, it is not directly subject to the requirements of NAGPRA. In instances where a proposed proj- ect is funded through the Federal Aid Highway Program, the land- managing agency is ultimately responsible for compliance. NAGPRA also imposes requirements on entities that receive Federal funds from any source and have possession of Native American human remains and protected cultural items. In certain instances, State Transporta- tion Agencies (STAs) that receive Federal Aid Highway funds may be 785 Id. § 10.1(b). 786 Id. § 10.2(f)(2). See Section C.1.c in this digest entitled “What is Indian Country?” that includes a discussion of land ownership in Indian country for relevant information. 787 24 U.S.C. § 3001(5). 788 See federal regulations at 43 C.F.R. Part 10 for detailed requirements. the conduct of appropriate research….”777 (2) An adverse effect becomes “not adverse” when the undertaking is limited to the “transfer, lease, or sale of a historic property, and adequate re- strictions or conditions are included to ensure preservation of the property’s significant historic features.”778 The Forest Service selected option 1, the tribe disagreed, and the court of appeals agreed with the tribe concluding “that documenting the trail did not satisfy the Forest Service’s obligations to minimize the adverse effect of transferring the intact portions of the trail.”779 (3) Section 4(f) of the Department of Transportation Act of 1966.780—Provides for a policy of making special effort to pre- serve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites, mandating that transportation programs and projects may use such land, where determined by state or local officials to be significant, only if there is no feasible and prudent alternative and all possible planning to minimize harm has taken place. (4) Archaeological Resources Protection Act of 1979781— Pro- vides for the protection and management of archaeological re- sources and sites that are on public lands or Indian lands, and specifically requires notification of the affected Indian tribe if archaeological investigations proposed would result in harm to, or destruction of, any location considered by the tribe to have religious or cultural importance. A permit is required; permits for excavation or removal of any archaeological resource located on Indian lands require consent of the Indian or Indian tribe owning or having jurisdiction over the land. This Act directs consideration of AIRFA in the promulgation of uniform regula- tions. The Archaeological Resources Protection Act “is clearly intended to apply specifically to purposeful excavation and re- moval of archeological resources, not excavations which may, or in fact inadvertently do, uncover such resources.”782 (5) Native American Grave Protection and Repatriation Act (NAGPRA).783—NAGPRA provides a “process for deter- mining the rights of lineal descendants and Indian tribes and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, or objects of cultural patrimony with which they are affiliated.”784 NAGPRA regulations apply to 777 Id. citing 36 C.F.R. § 800.9(c)(1). 778 Id. citing 36 C.F.R. § 800.9(c)(3). 779 Id. at 809. 780 Pub. L. No. 89-670, revised and recodified by Pub. L. No. 97-499, Jan. 12, 1983, 96 Stat. 2419, and amended by Pub. L. No. 100-17, tit. I, § 133(d), Apr. 2, 1987, 101 Stat. 173, (codified at 49 U.S.C. § 303). 781 Pub. L. No. 96-95, 93 Stat. 721, (codified at 16 U.S.C. § 470aa–470mm.) 782 San Carlos Apache Tribe v. United States (DOI), 272 F. Supp. 2d 860, 888 (D.C. Ariz. 2003), citing Attakai v. United States, 746 F. Supp. 2d 1395, 1410 (D.C. Ariz. 1990). 783 Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. §§ 3001–3013). 784 See 43 C.F.R. § 10.1.

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Update of Selected Studies in Transportation Law, Volume 8, Section 3: Indian Transportation Law Get This Book
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TRB’s National Cooperative Highway Research Program (NCHRP) Legal Research Digest (LRD) 76 examines the intersection of transportation law and Indian law as it relates to federal, state, and local transportation agencies.

The LRD provides background information on Indians, tribes, and the history of the federal government’s Indian policy and Indian law and explores jurisdiction in Indian country beginning with three basic concepts (inherent tribal sovereignty, Indians and tribal membership, and Indian country).

The LRD examines basic terms for land ownership on reservations and in Indian country more generally; provides an overview of criminal jurisdiction in Indian country; explores the law related to reservation boundary disputes; the fee-to-trust process and reservation proclamations; state sovereign immunity in suits involving Indian tribes; contracting with Indian tribes and tribal entities; acquisitions of Indian lands for public transportation purposes; and federal highway and transit programs involving Indian tribes.

In addition, the LRD explores planning and project development activities, construction activities, and operation and maintenance of highways in Indian country followed by a final section on government-to-government cooperation between states and Indian tribes.

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