H-1780-1_Final_0001.pdf

Form 1221-2

(June 1969)

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF LAND MANAGEMENT

MANUAL TRANSMITTAL SHEET

Release

1-1781

Date

12/15/16

Subject: BLM Handbook 1780-1 Improving and Sustaining BLM-Tribal Relations (P)

1. Explanation of Material Transmitted: This release transmits the new Handbook (H) 1780-1, Improving and Sustaining BLM-Tribal Relations, which replaces H-8120-1, Guidelines for

Conducting Tribal Consultation. H-1780-1 implements new administration and

Departmental policies to provide comprehensive guidance concerning tribal relations for all

BLM managers and programs.

2. Reports Required: None.

3. Material Superseded: H-8120-1. Release number 8-75

4. Filing Instructions: Remove and replace in accordance with the below instructions.

REMOVE All of H-8120-1 INSERT All of H-1780-1

Release 8-75

Neil Kornze

Director

Bureau of Land Management

H-1780-1 – IMPROVING AND SUSTAINING BLM-TRIBAL RELATIONS (P)

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Table of Contents

CHAPTER I. INTRODUCTION .............................................................................................. I-1 A. PURPOSE AND ORGANIZATION OF THIS HANDBOOK ........................................................... I-1 B. THIS HANDBOOK’S PLACE IN THE BLM MANUAL SYSTEM ............................................... I-2

CHAPTER II. BUILDING AND MAINTAINING TRIBAL RELATIONSHIPS ............. II-1

A. INTRODUCTION .................................................................................................................II-1 B. CONFIDENTIALITY ............................................................................................................II-1 C. BUILDING A BROAD-BASED RELATIONSHIP ......................................................................II-4 D. FINANCIAL SUPPORT FOR TRIBAL PARTICIPATION IN BLM DECISIONMAKING ...............II-14

E. ACCOUNTABILITY ...........................................................................................................II-15

CHAPTER III. TRIBAL CONSULTATION GENERAL CONSIDERATIONS .............III-1

A. DISTINGUISHING BETWEEN NOTIFICATION, COORDINATION, AND

CONSULTATION............................................................................................................... III-1

B. BLM REPRESENTATIVES IN CONSULTATION ................................................................... III-3 C. IDENTIFYING TRIBES AND OTHER INDIAN PARTIES FOR CONSULTATION ......................... III-4

D. WHEN IN THE DECISIONMAKING PROCESS TO START CONSULTATION ............................ III-7 E. PREPARING AND INITIATING TRIBAL CONSULTATION ..................................................... III-8 F. CORRESPONDENCE CONTENT .......................................................................................... III-9

G. GENERAL FEATURES OF CONSULTATION ...................................................................... III-11 H. USE OF INTERNET TO FACILITATE CONSULTATION ....................................................... III-13

I. LACK OF TRIBAL RESPONSE .......................................................................................... III-14 J. APPROACHES TO CONTENTIOUS MEETINGS .................................................................. III-15

K. HOW MUCH CONSULTATION TO DO—MEETING THE GOOD FAITH STANDARD ............ III-15 L. DOCUMENTATION OF NOTIFICATION, COORDINATION, AND CONSULTATION ............... III-17

M. CONCLUSION OF CONSULTATION .................................................................................. III-18

CHAPTER IV. GUIDANCE FOR TRIBAL CONSULTATION IN PLANNING

AND DECISION SUPPORT .................................................................................................. IV-1 A. GENERAL AUTHORITIES .................................................................................................. IV-1

B. ETHNOGRAPHIC STUDIES .............................................................................................. IV-17

C. COORDINATING TRIBAL CONSULTATION OBLIGATIONS UNDER DIFFERENT

LAWS ............................................................................................................................ IV-21 D. KEY DIFFERENCES BETWEEN VARIOUS AUTHORITIES .................................................. IV-22

CHAPTER V. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE NATIONAL CONSERVATION LANDS PROGRAM ........................................ V-1 A. OVERVIEW ....................................................................................................................... V-1

B. COMPONENTS OF THE NATIONAL CONSERVATION LANDS SYSTEM ................................. V-3

CHAPTER VI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE FIRE MANAGEMENT PROGRAM .................................................................... VI-1 A. INTRODUCTION ............................................................................................................... VI-1 ii

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B. LEGAL AUTHORITIES FOR TRIBAL CONSULTATION WITHIN THE FIRE

MANAGEMENT PROGRAM ............................................................................................... VI-1

C. IMPORTANCE OF LUP/RMP FOR FIRE PLANNING AND COORDINATION WITH

INDIAN TRIBES ................................................................................................................ VI-2 D. AREAS OF RESPONSIBILITY ............................................................................................. VI-3 E. PROGRAM OPERATION STANDARDS ................................................................................ VI-3 F. COHESIVE STRATEGY...................................................................................................... VI-3

G. PARTNERSHIPS WITH TRIBES ........................................................................................... VI-3

H. USE OF 638 COMPACTS OR SELF-GOVERNANCE CONTRACTS IN THE FIRE

PROGRAM ....................................................................................................................... VI-3

CHAPTER VII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE FOREST AND WOODLANDS PROGRAM ...................................................... VII-1 A. OVERVIEW ..................................................................................................................... VII-1

B. LEGAL AUTHORITIES ..................................................................................................... VII-2 C. TREATIES AND FOREST PRODUCTS ................................................................................. VII-3

D. STEWARDSHIP CONTRACTING ........................................................................................ VII-4

CHAPTER VIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE RANGELAND MANAGEMENT PROGRAM ................................................. VIII-1 A. INTRODUCTION ............................................................................................................ VIII-1 B. CONSULTING DURING MONITORING AND EVALUATION PROCESSES ............................ VIII-1

C. CONSULTING DURING GRAZING PERMIT RENEWAL AND OTHER VEGETATION

MANAGEMENT ACTIVITIES .......................................................................................... VIII-1 D. HOW TYPES OF PROJECTS REQUIRING TRIBAL CONSULTATION ARE DEFINED ............ VIII-2

CHAPTER IX. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE FISH AND WILDLIFE PROGRAM ..................................................................... IX-1 A. INTRODUCTION ............................................................................................................... IX-1 B. COLLABORATIVE CONSERVATION APPROACH ................................................................ IX-1

C. SUBSISTENCE MANAGEMENT .......................................................................................... IX-2 D. ENDANGERED SPECIES AND MANAGEMENT OF CRITICAL HABITAT ................................ IX-2 E. DISRUPTION AND REMOVAL OF ANIMAL PARTS ............................................................. IX-3 F. CONFIDENTIAL BIOLOGICAL INFORMATION .................................................................... IX-3

G. LAND ACCESS AND CROSS-BOUNDARY FIELD ACTIVITIES ............................................. IX-4 H. LAW ENFORCEMENT ....................................................................................................... IX-5

CHAPTER X. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE CULTURAL HERITAGE PROGRAM ................................................................. X-1 A. INTRODUCTION ................................................................................................................ X-1 B. CONSULTING UNDER HERITAGE RESOURCES AUTHORITIES ............................................ X-1

C. SPECIAL CONSIDERATIONS/ISSUES THAT APPLY TO THE CULTURAL HERITAGE

PROGRAM ...................................................................................................................... X-17 iii

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CHAPTER XI. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE RENEWABLE ENERGY PROGRAM ................................................................. XI-1 A. INTRODUCTION ............................................................................................................... XI-1

B. NEPA COMPLIANCE FOR UTILITY-SCALE RENEWABLE ENERGY RIGHT-OF-

WAY AUTHORIZATIONS .................................................................................................. XI-1 C. TRIBAL GOVERNMENT-TO-GOVERNMENT CONSULTATION ............................................. XI-2 D. SOLAR AND WIND ENERGY APPLICATIONS—DUE DILIGENCE ....................................... XI-3

E. EARLY COORDINATION MEETINGS AND DEVELOPMENT PRIORITIZATION ...................... XI-3 F. PROJECT-SPECIFIC CONSULTATION................................................................................. XI-5 G. COMPREHENSIVE SOLAR AND WIND ENERGY PROGRAMS .............................................. XI-6 H. SOLAR AND WIND ENERGY DEVELOPMENT POLICY ....................................................... XI-8

CHAPTER XII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE FLUID MINERAL PROGRAM (RESERVED) ................................................. XII-1

CHAPTER XIII. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE MINERALS PROGRAM ..................................................................................... XIII-1 A. INTRODUCTION ............................................................................................................ XIII-1

B. ONSHORE ENERGY AND MINERAL LEASE MANAGEMENT INTERAGENCY

STANDARD OPERATING PROCEDURES .......................................................................... XIII-1

C. TRIBAL CONSULTATION FOR FEDERAL MINERALS MANAGEMENT GENERALLY .......... XIII-3

D. TRIBAL CONSULTATION FOR FEDERAL MINERALS MANAGEMENT IN SPLIT

ESTATE SITUATIONS .................................................................................................... XIII-4 E. BLM RESPONSIBILITIES FOR INDIAN TRUST MINERALS MANAGEMENT ...................... XIII-5 F. INDIAN SELF-DETERMINATION ACT .......................................................................... XIII-10

CHAPTER XIV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE CADASTRAL SURVEY PROGRAM ................................................................ XIV-1 A. BACKGROUND .............................................................................................................. XIV-1 B. CADASTRAL PROGRAM ROLE IN MANAGING TRUST ASSETS ....................................... XIV-1

C. BOUNDARY EVIDENCE ................................................................................................. XIV-2 D. SURVEY PROCESS ........................................................................................................ XIV-3

CHAPTER XV. GUIDANCE FOR TRIBAL CONSULTATION APPLICABLE

TO THE REALTY PROGRAM (RESERVED) ................................................................. XV-1 A. POLICY REGARDING CONTRACTING FOR PRODUCTS ......................................................... 2-1

B. POLICY COVERING COMPENSATION FOR TRIBAL INPUT INTO BLM

DECISIONMAKING PROCESSES .......................................................................................... 2-3

GLOSSARY OF TERMS ......................................................................................................... G-1

FIGURES

Figure III-1 With whom to consult depends on the particular legal authority. ..................... III-8 Figure IV-1 Provisions of Title II of the Federal Land Policy and Management Act. ......... IIV-2 iv

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Figure IV-2 Tribal consultation for purposes of Title II of the Federal Land Policy and

Management Act. .............................................................................................. IIV-3

Figure IV-3 Provisions of Section 102 of the National Environmental Policy Act.............. IIV-7 Figure IV-4 Tribal consultation for purposes of Section 102 of the National

Environmental Policy Act. ................................................................................ IIV-8 Figure IV-5 Provisions of the American Indian Religious Freedom Act. .......................... IIV-13 Figure IV-6 Tribal consultation for purposes of Section 2 of the American Indian

Religious Freedom Act. .................................................................................. IIV-13 Figure IV-7 Provisions of Executive Order No. 13007 ...................................................... IIV-15 Figure IV-8 Tribal consultation for purposes of Executive Order No. 13007, “Indian

Sacred Sites.” .................................................................................................. IIV-16 Figure X-1 Tribal consultation for purposes of Section 106 of the National Historic

Preservation Act. ................................................................................................. X-1 Figure X-2 Provisions of Section 101(d)(6) of the National Historic Preservation Act. ...... X-2

Figure X-3 Provisions of Section 4 of the Archaeological Resources Protection Act. ......... X-7

Figure X-4 Tribal consultation for purposes of Section 4(c) of the Archaeological

Resources Protection Act. ................................................................................... X-9 Figure X-5 Provisions of Sections 5, 6, and 7 of the Native American Graves

Protection and Repatriation Act and Corresponding Regulations. ................... X-12 Figure X-6 Provisions of Section 3(c) and (d) of the Native American Graves

Protection and Repatriation Act and Corresponding Regulations. ................... X-13 Figure X-7 Quick Reference for New Discoveries and Collections Requirements under the Native American Graves Protection and Repatriation Act. .............. X-15

Figure X-8 Appropriate Consulting Parties Associated with Selected Native

American Graves Protection and Repatriation Act Activities. ......................... X-16

Figure A3-1 Example of a spreadsheet/database to document tribal consultation. ............... A3-1

APPENDICES

APPENDIX 1 ACRONYMS AND ABBREVIATIONS ..................................................................... A1-1

APPENDIX 2 IMPLEMENTATION OF BLM POLICY REGARDING COMPENSATION TO

NATIVE AMERICANS FOR PRODUCTS AND THEIR PARTICIPATION IN THE

BLM’S DECISIONMAKING PROCESSES ............................................................... A2-1

APPENDIX 3 SPREADSHEET/DATABASE TO DOCUMENT BLM-INDIAN TRIBAL

CONSULTATION.................................................................................................. A3-1

APPENDIX 4 COORDINATION OF NEPA, NHPA 106, AND TRIBAL CONSULTATION ............... A4-1

APPENDIX 5 EXAMPLE OF CONTENTS FOR TRIBAL CONSULTATION STRATEGY ..................... A5-1

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CHAPTER I. INTRODUCTION

A. Purpose and Organization of this Handbook

Manual Section 1780 (MS-1780) and Handbook 1780-1 (H-1780-1) are being released simultaneously. H-1780-1, Improving and Sustaining BLM-Tribal Relations, replaces H-8120-1

(Rel. 8-75, 12/03/04). MS-1780, Tribal Relations, replaces MS-8120 (Rel. 8-74, 12/03/04).

MS-8120 and H-8120-1 were specific to implementation of historic preservation authorities only.

Therefore, this new guidance is appropriately placed within the Bureau of Land Management

(BLM) 1700 series, which addresses relations with other governments, including State, local, and international relations. Developed in response to the finalization of 512 Departmental Manual

(DM) Chapters 4 and 5, H-1780-1 with MS-1780 provides direction for all BLM programs for improving and sustaining tribal relations, including government-to-government consultation.

We attempted to be inclusive; however, this handbook does not contain sections for every program area or discipline who should be involved in tribal relations. Updates and additional chapters will be added when they are available.

H-1780-1 addresses a broad range of legal authorities and agency programs of interest to tribes and also highlights BLM responsibilities. It incorporates current guidance derived from recent case law, new Secretarial orders and policies, Executive orders, and decades of experience working with tribes on a government-to-government basis:

Chapter I introduces the handbook material and its relationship to the manual.

Chapter II provides steps the BLM should take to build a positive broad-based relationship with Indian tribes. Suggestions stress developing partnerships based on common interests, financial support, confidentiality, and accountability.

Chapter III provides practical guidance on the mechanics of government-to-government consultations applicable to all BLM programs, including: (1) how to conduct and document consultation efforts; (2) identification of tribal leaders or their representatives;

(3) developing strategies to achieve success in BLM-tribal relations, communications, meetings and formal government-to-government consultations; and (4) recognizing tribal motivation driving consultation.

Chapter IV addresses consultation needed in land use planning and decision support. It summarizes BLM obligations under the Federal Land Policy and Management Act

(FLPMA); National Environmental Policy Act (NEPA); Executive Order (E.O.) 13175, Consultation and Coordination with Indian Tribal Governments; the American Indian

Religious Freedom Act (AIRFA); and Executive Order 13007, Indian Sacred Sites. The use of ethnographic studies for planning purposes, how to coordinate tribal consultation obligations under these legal authorities, as well as key differences among the legal mandates are highlighted.

Chapter V outlines requirements for tribal consultation and opportunities for tribal partnerships within National Conservation Lands.

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Beginning with Chapter VII, a series of program-specific chapters can be found. Each chapter highlights legal authorities driving consultation and tribal relations for that program, explains special considerations applicable to that program, and identifies potential partnerships or agreements with Indian tribes.

Program-specific chapters: Fire Management Program (Chapter VI); Forest and

Woodlands Program (Chapter VII); Rangeland (Chapter VIII); Fish and Wildlife

Program (Chapter IX); Cultural Heritage Program (Chapter X); Renewable Energy

Program (Chapter XI); Fluid Mineral Program (reserved at Chapter XII); Minerals

Program (Chapter XIII); Cadastral Survey Program (Chapter XIV); and Realty Program

(reserved at Chapter XV). Handbook guidance is not limited to those programs featured within individual chapters. Examples and clarifications are provided throughout the text regarding how the issue under discussion affects a variety of BLM program areas.

B. This Handbook’s Place in the BLM Manual System

MS-1780 and this handbook, H-1780-1, are housed within the BLM’s broad administrative manual series, since they focus on cooperative relations with other governments, including State and international relations. This guidance is intended for line managers exercising their executive duties and other agency decision makers; however, certain chapters and appendices provide technical direction as well. Agency staff and public land users will also find this handbook beneficial to establish familiarity with agency policies and expectations of the decision makers.

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CHAPTER II. BUILDING AND MAINTAINING TRIBAL RELATIONSHIPS

A. Introduction

Successful relations with tribes are built upon the establishment of personal and professional relationships characterized by trust, respect, and mutual interest. Field offices are encouraged to utilize the tools and strategies presented in this chapter to establish deeper and more meaningful agency-tribal relationships. These relationships must be founded upon policies that encourage stable interactions and that seek out opportunities to interact positively with tribes across many program areas.

Examples of innovative, cooperative programs between BLM offices and individual tribes are presented in the following sections. Many tribal requests for gaining access to sites, gathering materials for traditional uses, and protecting sacred places can be addressed within the normal scope of multiple use management. But the BLM’s success in addressing tribal issues depends a great deal on how strong its working relationships are with tribes, how trustful those relationships are, and how skillfully the agency has developed a respectful relationship over time.

B. Confidentiality

1. Background Information. Native Americans may be reluctant to share sensitive information regarding resource locations and community-held values with agency officials for several reasons. First, historical relations among native people and others have led to a distrust of the

Federal Government and the non-Indian public, especially related to the respect for Native

American religion. Second, secrecy is often a central tenet of Native American religious beliefs.

Third, many Native Americans fear that sharing information with outsiders could result in the abuse of sacred sites and the disruption of religious ceremonies.

Managers and staff carrying out Native American consultation should clearly represent the sort of information they seek, the purposes to which the information will—and will not—be applied, and the limits of the BLM’s ability to protect the information from public disclosure. The extent of that ability must not be misrepresented. All sensitive data should be carefully maintained and securely stored. Offices responsible for gathering sensitive information and conducting consultation should have adequate physical and procedural means to ensure secure file maintenance and management.

Each office may wish to develop maps or geospatial layers in accordance with BLM

Federal Geographic Data Committee standards showing areas where tribes have identified issues or concerns. Maps can depict lands historically occupied or utilized and can also locate areas identified as having ongoing traditional religious significance and use. However, when information of this extremely sensitive nature is included, maps must be treated as confidential working files with limited internal access and kept from public view. The metadata should indicate its confidentiality.

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2. Federal Advisory Committee Act (FACA). The FACA requirements for open meetings and public access do not apply to tribal consultation involving only Federal and Tribal representatives because Congress has exempted intergovernmental consultation from

FACA requirements. Please consult the Solicitor's Office on the scope of the exemption when arranging a tribal consultation.

3. Freedom of Information Act (FOIA). Native American are sometimes reticence to share information because agencies have been partially hindered from effectively protecting sensitive information. Once in an agency’s possession, the information may be subject to disclosure if it is requested under the 1966 Freedom of Information Act

(FOIA; 5 U.S.C. 552) or distributed as part of publically available NEPA analysis.

The extent to which sensitive tribal information can be maintained as confidential depends on the degree to which it fits within one of FOIA’s nine exemptions. These exemptions may protect most information about sacred sites. Whether or not all such information can be protected under them should be discussed with the Solicitor’s Office.

Several exemptions may apply

Exemption 3 protects from disclosure matters “specifically exempted from disclosure by statute” and exemption 6 exempts “personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

Another possibility concerns the “trade secrets” exemption. It applies to trade secrets and commercial or financial information that is also privileged or confidential.

To the extent permitted by law, if a tribe submits information under a claim of protection, the BLM can assert an applicable privilege for, and seek to protect, that information from public disclosure. While these privileges are initially asserted by the BLM, a challenge to an assertion of privilege may be ultimately resolved by the Federal judiciary when a decision is challenged in court. In this circumstance, a privileged document may be subject to review or possible release by a court, notwithstanding the BLM’s good faith assertion of an applicable privilege. Thus, a tribe must assess and be comfortable with any and all submissions it makes to assist the BLM in its land-use planning process, understanding that there is some risk certain documents may, in the end, be publically disclosed.

4. Archaeological Resources Protection Act (ARPA). The regulations (43 CFR 7) implementing the Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470aa–

470mm) requires protection from public release. However, it is important to note that

ARPA’s non-disclosure obligation has important limitations. First, the statute mandates protection against publicly releasing information about “archaeological resources,” which include “material remains of past human life or activities which are of archaeological interest” and are at least 100 years of age. Second, even if the information involves an archaeological resource, if the State’s governor requests the information, the agency must provide it. State statutes governing disclosure or protection of such information would govern its protection from that point forward. Third, ARPA only applies to public

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Supersedes Rel. 8-75 12/15/16 surface. Thus, information gathered from BLM consultation regarding private or State surface is not protected under this statute.

5. National Historic Preservation Act (NHPA). The National Historic Preservation Act

(54 U.S.C. 300101 et seq.) requires the non-disclosure of sensitive information following procedures that agencies must follow at 54 U.S.C. 307103. Although courts have not yet ruled that NHPA is a withholding statute under FOIA, it appears to be so. NHPA provides that the head of a Federal agency conducting NHPA consultation shall, after consulting with the Secretary of the Interior, “withhold from disclosure to the public information about the location, character, or ownership of a historic property” if the

Secretary and the agency conclude that disclosure would do any of three things: (1) cause a significant invasion of privacy; (2) risk harm to the historic resource, or (3) impede the use of a traditional religious site by practitioners. The main limitation with using this protection is that in order to withhold sacred site information under the NHPA, the BLM must first determine that the information pertains to historic properties—that is, properties included in or eligible for inclusion on the National Register of Historic Places

(National Register or NRHP). The BLM then can only make a conditional promise to withhold information under the NHPA if there is a sufficient basis to conclude that the site or sites in question are likely to be considered historic properties.

The ACHP has released guidance on the use of 54 U.S.C. 307103 (old Section 304) to protect sensitive information about historic properties. The federal official determines what information to withhold, prepares redacted documents, develops documentation to support the decision, and initiates consultation with the Keeper of the National Register

(NPS). If the official and the Keeper both agree that disclosure meets the criteria for withholding, then the official withholds the information from disclosure. NPS reviews the relevant information and after consulting with the official determines who may have access to the information. The Keeper consults with the ACHP in this process of determining withholding and access when the information at issue was developed in compliance with Section 106 or Section 110(a) of the NHPA. If the official and the

Keeper disagree on whether disclosure of certain information meets the criteria for withholding, then the information will not be withheld under Section 304. The decision to withhold information requires agreement by the official and the Keeper. The ACHP's opinion on this matter is advisory only.

6. Other Strategies. State-adopted versions of the 1979 Uniform Trade Secret Act and the

1974 Privacy Act (5 U.S.C. 552a) also may provide limited degrees of protection.

Oregon. Vale District. In April 2009, the Vale District entered into a Trade Secret

Agreement with the Confederated Tribes of the Umatilla Indian Reservation. In this agreement, the tribes agree to conduct an inventory of culturally important plant species and to use this plant list to model potential habitat for these species using geographic information system (GIS) and statistical methods. The two parties concur that the model

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Supersedes Rel. 8-75 12/15/16 generated would inextricably involve cultural resources and information uniquely known to the tribes, which is of economic value. Both the list and the model are, and will be, trade secrets of the tribes in so far as they consist of information that is secret, has economic value due to its secretive nature, and the tribes have made reasonable efforts to keep this and other cultural information and knowledge secret. Thus, the agreement concludes that this information may not be subject to disclosure under the trade secrets exemption in the Freedom of Information Act.

Another option to consider for protecting sacred site and other sensitive tribal information from public disclosure is to refrain from housing such information within any formal federal government system of records. Such data might be housed at tribal offices with joint use agreements allowing BLM officials with a need to know access to the files at tribal offices. Field offices should consult the Solicitor’s Office regarding the application of these statutes and strategies to protect from public disclosure sensitive information regarding sacred sites or places of traditional religious or cultural importance versus the requirement to disclose such information if used by the BLM to make decisions.

C. Building a Broad-Based Relationship

1. Learn About Indian Tribes, Communities, and Leaders. Managers and their staffs should take the time to learn about the tribes with which they will be working:

What is their history?

What is their aboriginal land base?

When were they federally recognized?

Were their reservation rights (if any) established by treaty or by Executive order?

How are they organized?

Do they have off-reservation treaty or other reserved rights?

Are they related historically or culturally to other tribes in the area?

Are there specific cultural customs that may have bearing on interactions and meeting protocols?

It is a good idea to read the most widely accepted ethnographic histories of the tribe and information produced by the tribe about itself and membership, often available on their website. Consider subscribing to tribal media and accessing websites or other media to keep informed about what is important to the tribes with an interest in your area, who the tribal leaders are, and what issues are of concern to them. Be open to receiving information from officials about their tribe, its customs, and history. Also, be aware that some information may be considered sensitive and should not be widely disseminated.

Meet or contact tribal representatives, such as tribal history or cultural program leaders, kaben Highlight

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Supersedes Rel. 8-75 12/15/16 to learn what sources of information about the tribe they recommend. This context will have a bearing on meetings and consultations with tribes and may affect how successful a

BLM office is in its consultation efforts.

2. Establish and Maintain Personal Relationships. The most successful BLM-tribal working relationships are those built and maintained over a long period of time with the same individuals representing each party. A good example is the BLM Indian Lands

Surveyor (BILS) Program, whereby senior cadastral surveyors are stationed at BIA

Regional Offices, consulting on a regular basis with tribal leaders and managers, individual Indians, and Alaska Natives regarding issues affecting BLM-tribal management of land boundaries relations.

The BLM managers are encouraged to visit tribal councils and appropriate tribal leaders on a recurring basis. Face-to-face meetings help develop relationships, irrespective of specific issues or proposed actions. Managers are encouraged to take advantage of these meetings to discuss how, when, and with whom follow-up consultation should occur.

Attending economic enterprises, celebrations, dances, cultural festivals, sporting events, or feasts provides positive intercultural experiences that can build more personal, trustful relationships.

The BLM managers should assign tribal coordination duties to a limited number of employees with the goal of encouraging those employees to develop long-term professional relationships with tribes. These tribal liaisons or other staff play key roles in coordinating with tribal staff and representatives and often attend government-to-government meetings. These staff support field managers who have been delegated the authority to make binding decisions (see Chapter III. B). Suggested employee performance appraisal plan elements are provided in Chapter II, section E.1.

When BLM managers and/or staff assigned consultation and coordination responsibilities retire, transfer, or have changes in job duties, tribal relationships can be adversely affected. Therefore, BLM managers should take appropriate actions to help minimize the turnover of personnel responsible for tribal coordination. Such actions might include assignment of accretion of duties, creation of appropriate career ladders, etc.

Potential disruptions due to staff turnover can be reduced or managed in a number of ways. New BLM managers and staff should take training on tribal consultation and relations, such as courses provided by the National Training Center (NTC). Several are available online. Tribal liaisons should brief managers shortly after they come on board regarding the history of local tribal relations, existing agreements, prominent issues, and resources of concern to the tribe that the BLM knows about. Tribal liaisons should accompany managers in meetings. New managers need to visit tribes soon after arrival to become oriented regarding tribal governmental structures and tribal perspectives and to ensure that regularly scheduled government-to-government consultations will not be disrupted.

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Tribal governments hold elections for president or chairperson frequently, sometimes yearly. All BLM managers should quickly take the opportunity to meet with new tribal officials at the start of their tenure to discuss ongoing land use planning, land use actions, and proactive programs of interest to the two parties. Relationships between BLM personnel and permanent tribal staff, such as natural resources division directors, NAGPRA coordinators, planning personnel, tribal historic preservation officers, and other program offices can help maintain continuity. Relationships with other tribal groups, such as the National Congress of American Indians, Alaska Federation of

Natives, the Institute for Tribal Environmental Professionals, and other partnership groups can also help the BLM maintain up-to-date information regarding tribal leadership and contacts.

3. Build Partnerships. Managers and program leaders at all levels of the BLM should seek out opportunities to build partnerships with Indian communities. Each BLM program is to ensure that the management of public lands benefits from full engagement with the original stewards of those lands through such means as cooperative agreements, interagency agreements, contracts, hires, and volunteers.

4. Collaborative Land Management.

a. Self-Determination Contracts and Self-Governance Funding Agreements. The

1975 Indian Self-Determination and Education Assistance Act (ISDEAA; 25 U.S.C.

450) provides for tribes to contract to take over certain federal programs benefiting tribes. These self-determination act contracts are known as “638” contracts. Initially, this program only applied to the BIA and Indian Health Service. However, later amendments to the act (Pub. L. 100-472, 1988; Pub. L. 103-413, 1994) expanded self-determination contracting to all DOI agencies. Federal and tribal representatives negotiated regulations for the ISDEAA, which can be found at 25 CFR 900. In addition, there is an internal agency procedures handbook, which also resulted from

Federal and tribal collaboration. As amended, Public Law 638 consists of five titles.

Those applicable to the BLM include Title I, Indian Self-Determination Act, and Title

IV, Tribal Self-Governance.

Under Title I, BLM must enter into self-determination contracts with tribal organizations to assume programs, functions, services or activities that benefit Indians because of their status as Indians. Funding must be no less than is currently spent on the program. Contract proposals must be approved or declined within 90 days of receipt or they are automatically approved. Proposals can be declined for only one or more of five statutory reasons. Consult the Solicitor's Office as soon as you receive a self-determination contract proposal under Title I.

Under Title IV, self-governance tribes negotiate annual funding agreements with

BLM to assume programs, functions, services or activities for the benefit of Indians because of their status as Indians. In the discretion of BLM, a self-governance tribe

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Contractible BLM programs include Indian minerals and the field survey portion of cadastral surveys.

Field offices are encouraged to identify and publish in the Department's annual

Federal Register notice any programs, functions, services and activities that self-governance Tribes can assume.

b. Fire and Aviation Programs. The Fire and Aviation Directorate regularly partners with tribes and other agencies to maximize initial fire attack. The Fuels Management

Program focuses on protecting communities and natural and heritage resources while providing for local economic opportunities. Hundreds of millions of dollars in recent years have significantly supplemented rural economies. Such contracts focus on the development of community wildfire protection plans, fuels treatments, biomass utilization, and consultations. Fire prevention and education teams consult with local residents to help reduce human-caused fires and to implement fire prevention and education programs (see Chapter VI).

c. Cadastral Survey. The BLM Cadastral Survey Program has established strong relationships with the BIA’s Real Estate Services and Office of the Special Trustee for American Indians (OST) for the purpose of providing cadastral services on Indian trust lands. Principal components to this fiduciary trust program: (1) developing the

Indian Lands Surveyor (BILS) program to install a highly experienced cadastral surveyor into each of the 12 BIA regional offices to expedite cadastral services to

Indians; (2) creating a Certified Federal Surveyor (CFedS) Program to assist licensed land surveyors to continue their professional development and to implement a training program to certify hundreds of surveyors to work on Indian or trust lands, including training tribal surveyors; (3) improving the condition of the Public Land

Survey System; (4) creating a cadastral Geographic Information System (CGIS) to graphically represent the records that compose land ownership and occupancy of the individual or tribe; (5) establishing cadastral survey project offices on reservations;

and (6) providing title and mapping leadership in the Department’s buy-back program.

An inventory of survey needs on Indian trust lands developed in collaboration with the BIA and OST prioritizes work based on trespass abatement, timber harvest, mineral leasing, and other priorities related to Indian trust assets and helps guide disbursement of funds into individual Indian monetary accounts (see Chapter XIV).

d. Heritage Resources Management. In furtherance of the Inter-Agency

Memorandum of Understanding (MOU) on the Protection of Indian Sacred Sites executed in 2012, the BLM should engage with tribal partners to build tribal capacity for the identification, evaluation, and protection of sacred sites. Tribes may be

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Supersedes Rel. 8-75 12/15/16 interested in entering into agreements to share capability, expertise, and insight into how to foster collaborative stewardship of sacred sites and other properties of traditional religious and cultural importance. Field offices should also consult with tribes when developing site-specific protection and management plans that pertain to sacred sites or properties of traditional religious and cultural importance. Following consultation and commitment in agreement documents, tribal expertise and capability regarding stabilization, patrolling, interpretation, stewardship education, or ethnographic insights into site use and significance can strengthen the management of heritage resources on public lands.

5. Procurement.

a. Small Disadvantaged Businesses. The BLM is committed to increasing contracting opportunities for small business communities. Section 8(a) of the 1958 Small

Business Investment Act (15 U.S.C. 14A) authorized the Small Business

Administration to enter into prime contracts with Federal agencies and to subcontract the performance of the contract to small business concerns. Executive Order 11458, Prescribing Arrangements for Developing and Coordinating a National Program for

Minority Business Enterprise (34 CFR 4937), authorized the use of this provision to assist minority businesses and established the 8(a) program, as it is commonly called.

Many tribal businesses may be eligible to take advantage of their status as a Small

Disadvantaged Business, an 8(a) participant, or a Historically Underutilized Business

(HUB) Zone. Local procurement offices should contact tribal business offices and the Small Business Administration to encourage Indian tribal firms to bid on upcoming BLM contracts for which they may qualify. Small disadvantaged businesses must be owned by individuals who are “socially and economically” disadvantaged and meet other conditions as defined by regulations. (See 13 CFR

124.104.)

The 8(a) program assists in the expansion and development of existing, newly organized, or prospective profit-oriented small disadvantaged firms. Small businesses may apply for the section 8(a) program if they are owned and controlled by one or more persons who can provide evidence of having been deprived of the opportunity to develop and maintain a competitive position in the economy because of social and economic disadvantages. In Alaska, the corporations formed by

ANCSA were legislatively approved for inclusion in the 8(a) program.

The HUB Zone program stimulates economic development and creates jobs in urban and rural communities by providing Federal contracting preferences to small businesses. These preferences go to small businesses that obtain this certification by employing staff who live in a HUB Zone and establishing a “principal office” in one of the specifically designated areas.

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b. 1910 Buy Indian Act (25 U.S.C. 47). Under this act, the Secretary of the Interior has broad discretionary authority to promote the purchase of the products of Indian

Country. Though mandatory for the BIA, the act is discretionary for the BLM. Its regulations were issued in July 2013 (see 48 CFR 1401; 1452; and 1480). This act provides further authorization for BLM to offer procurement contracts to Indian-owned businesses in their regions.

c. Indian Tribes Qualify as Not-for-Profit Organizations. The Internal Revenue

Service has determined that federally recognized tribes qualify as not-for-profit organizations; thus, contributions to them may be tax deductible. Their status as not-for-profit organizations allows tribes to participate in, or apply for, special grants and awards restricted to such organizations. Field offices must check with their procurement offices to pursue opportunities to utilize such grants to advance common goals and program interests.

d. Contracting for Services, Expertise, or Products Needed for Decisionmaking.

The BLM may require land use applicants to obtain information from tribes needed to fulfill its NEPA or NHPA requirements as a condition of the permit or authorization.

Information may include knowledge about the management of natural resources or cultural properties, such as current or past land use practices, resource utilization, or distribution of natural resources. In addition, the BLM itself may contract or pay for tribes and Indian individuals to produce reports. (See Chapter IV on land use planning and Chapter X on cultural resources for more information on NEPA and

NHPA requirements for decisionmaking and compliance.) The BLM’s ability to obtain this information may be impossible without assistance of an Indian tribe or tribal representative. Indian tribes often have occupied lands near or utilized portions of public lands for long periods of time. Their insights into past land conditions and the impacts of human use and occupation on ecosystems extend back in time for hundreds of years. Thus, their knowledge of natural and human interactions on the landscapes managed by the BLM might be shared with the BLM through—

Studies of plant or animal communities and how past land practices affected species diversity and distribution;

Fire regime studies that consider how frequently landscapes were deliberately burned by Native populations;

Forestry studies that seek an understanding of pinyon-juniper canopy composition back through time based on ethnographic accounts of pinyon nut harvesting; and

Ethnographic reports, National Register nominations, or other specific information regarding historic properties, trails, sacred sites, and landscapes.

6. Human Resources.

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a. Introduction. Field offices should consult their local servicing personnel office regarding which hiring authorities, tools, and programs may be used to attract underrepresented Native Americans, either directly to the BLM employment rolls or indirectly through a partner entity. Federal laws, Executive orders, and implementing regulations from the Office of Personal Management and the Equal Employment

Opportunity Commission mandate certain programs to ensure equal opportunity in employment and equal treatment of employees. (See, for example, Executive Order

13592, Improving American Indian and Alaska Native Educational Opportunities and

Strengthening Tribal Colleges and Universities (3 CFR 13592; December 2, 2011)).

The Native American Program requires special emphasis in providing employment opportunities for Indian people regarding Federal employment opportunities. The

ISDEAA establishes Indian preference hiring for Federal programs that are designed to benefit Native people. This mandate is most often applied within the BIA and

Indian Health Services but is not limited to these agencies. It requires that Federal contracts to Indian organizations or for the benefit of Indians give preference and opportunities for training and employment to Indians to the greatest extent feasible.

b. Employment Opportunities for Native Americans and Alaska Natives. The BLM should develop Native American recruitment programs, including the Pathways

Program, and participate in career days with tribes and Indian schools. This assists in attracting qualified personnel to the agency so that its workforce can be more representative of the nation’s cultural diversity. These recruitment efforts should be focused in tribal communities near lands managed by the BLM for which tribes have cultural, economic, or religious interests.

Although the BLM does not utilize Indian preference hiring per se, the agency does allow self-identification for employment statistics. ANILCA Section 1308

(applicable to land managing agencies in Alaska) authorizes the hiring of individuals with specialized, localized knowledge or expertise.

Internship opportunities for tribal youth as well as challenge cost-share…