500.6 - American Indian and Alaska Native Tribal Relations
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Date: 09/14/2020
OPR: Office of Science Quality and Integrity
Instruction: This replaces Survey Manual (SM) chapter 500.4 – Policy on Employee Responsibility Towards American Indians and Alaska Natives, dated August 14, 1995 and SM 500.6 - American Indian and Alaska Native Sacred Sites, dated June 20, 1997.
1. Purpose and Scope. This SM chapter clarifies and describes U.S. Geological Survey (USGS) requirements and responsibilities regarding compliance with applicable statutes, regulations, Executive and Secretarial Orders and Memoranda, and Department of the Interior (DOI) policies relevant to the relationships between the USGS and American Indian tribes, Alaska Native tribes, and Alaska Native Corporations.
2. Definitions.
A. Tribe or Indian tribe means an Indian or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe pursuant to the federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. § 5131). The Bureau of Indian Affairs (BIA) maintains and publishes the official list of all federally recognized tribes under that Act. The BIA list may expand over time because other, non-federally-recognized tribes may become so designated based on a successful federal acknowledgement process or congressional action. It is only to federally recognized tribes that USGS has a trust responsibility; and these are the only tribal political entities with whom the DOI requires its Bureaus and boards to consult with on a formal government-to-government basis if a planned federal action could affect tribal lands and resources, both natural and cultural.
B. Alaska Native Claims Settlement Act (ANCSA) Corporation (also known as an Alaska Native Corporation) means any Alaska Native Village Corporation, Urban Corporation, or Regional Corporation as defined in, or established pursuant to, the ANCSA (42 U.S.C. § 1601 et seq.). ANCSA Corporations are not federally recognized tribal entities but are landholding corporations. Congress has required that federal agencies consult with ANCSA Corporations in the same manner as government-to-government consultations with Indian tribes.
C. Federal lands mean any land or interests in land owned by the United States, including leasehold interests held by the United States, except for tribal trust lands.
D. Tribal lands.
(1) Tribal trust lands are lands held in trust by the U.S. Government (the trustee) on behalf of a federally recognized Indian tribe. These lands are subject to federal oversight for sale or leasing. Tribal trust lands are predominantly, though not solely, termed reservations but may also be called pueblos or rancherias, based on the unique history of each tribe. In some cases a tribe may have trust lands that are located outside the exterior boundaries of its reservation, pueblo, or rancheria. A tribe may also own land in fee simple where it does not have the same jurisdictional power that it does on its tribal trust lands, nor does the sale or alienation of these fee lands necessitate the federal oversight required with tribal trust lands.
(2) Ceded lands refer to lands located within a tribe’s aboriginal territory (prior to establishment of any federally established reservation, pueblo, or rancheria) or lands that were located within the former boundaries of a reservation that were “ceded” or relinquished by the tribe to the United States, usually by treaty.
(3) Ceded lands with reserved rights refer to areas ceded by tribes to the United States by treaty but for which tribes have retained rights (specified within the treaty) for their members to hunt, fish, and/or gather other resources on them.
(4) Aboriginal lands are traditional homelands of indigenous people. While they have lost jurisdiction and control over those lands, their ancestral connections—to these places where their ancestors lived and died—often remains extremely strong. Congressional desire to ensure protections of these aboriginal lands has resulted in statutes and regulations requiring the consideration of the impact federally funded or licensed projects could have on any cultural resources (archeological sites, burial and non-burial, and sites with cultural and religious significance) that may be present.
E. Treaties are legal agreements between sovereign nations. Treaties the United States signed with Indian tribes acknowledged the tribes’ inherent sovereignty as distinct nations and are still in force.
F. The Federal trust responsibility is a legal obligation under which the United States “has charged itself with moral obligations of the highest responsibility and trust” toward Indian tribes (Seminole Nation v. United States, 1942). The United States is the trustee for certain things held in trust (generally land, minerals, money, timber, and treaty rights to water, hunting, and fishing) for the benefit of tribes and Indian individuals. The Supreme Court has held several times that the duties that the United States must perform as trustee are found in the statutes and regulations setting up and administering the trust resources. Fulfillment of those duties depends on the nature of the statute imposing them. Most importantly, here, for statutes of general applicability (including the National Environmental Policy Act and most other environmental statutes), unless the statute places a specific duty on the Government, the trust responsibility is satisfied by the agency’s compliance with general regulations and statutes not specifically aimed at protecting Indian tribes. On the other hand, in interpreting statutes passed for the benefit of Indians (for example, the Native American Graves Protection and Repatriation Act (NAGPRA), the Archaeological Resources Protection Act, portions of the National Historic Preservation Act (NHPA), tribal portions of environmental statutes) and implementing regulations, the agency must construe any ambiguities in favor of the tribe. Finally, when the Secretary is acting in a fiduciary role rather than solely as a regulator and is faced with a decision under a statute administering trust resources (e.g., the Indian Mineral Development Act or the Indian Long-Term Leasing Act) for which there is more than one “reasonable” choice, they must choose the alternative that is in the best interests of the Indian tribe.
G. The government-to-government relationship between the Federal Government and federally recognized Indian tribes is rooted in the historic signing of treaties, in which the United States recognized and acknowledged the inherent sovereignty of tribal nations. The U.S. Constitution established the exclusive power of the Congress to regulate commerce with Indian tribes in Article 1, Section 8, Clause 3, known as the “Indian Commerce Clause.” Every recent Administration has issued Presidential memoranda binding the U.S. Government to this relationship. From that recognition flows the obligation to conduct dealings with a tribe’s leadership on a government-to-government basis. In practice, this relationship is embodied by formal government-to-government consultation (refer to 2.I. below) between a designated tribal representative and a designated federal representative who has the authority to make decisions on issues that may impact a tribe’s rights and/or interests.
H. Native Hawaiian Organization (NHO) is “any organization which, a) serves and represents the interests of Native Hawaiians; b) has as a primary and stated purpose the provision of services to Native Hawaiians; and c) has demonstrated expertise in aspects of historic preservation that are culturally significant to Native Hawaiians” (54 U.S.C. 300314). While NHOs are not federally recognized Indian tribes, under the NHPA they have a statutory right to be a consulting party in the Section 106 process, though the consultation is not conducted on a government-to-government basis. NHOs are also considered to be equivalent to Indian tribes for purposes of claims under the NAGPRA.
I. Consultation is the process of seeking, discussing, and considering the views of others with an interest in the subject matter, and, where feasible, seeking agreement with them. Consultation with federally recognized tribes is conducted on a government-to-government basis between a designated representative from a bureau who has the authority to make decisions and commitments, and a designated representative of the tribe. The benefits of consultation early in the planning process of a federal activity is that consulting parties may have information useful to this process, for example, whether there may be historic properties or properties of religious or cultural significance to a tribe in the area of potential effect, or whether the activity might impact the tribe’s rights, lands, and resources in a negative manner. Learning about such concerns early in the planning process helps avoid unexpected challenges that could delay or even derail a project, thus, saving time, money, and safeguarding cooperative relationships with Indian tribes and ANCSA Corporations. Several statutes, Executive Orders, and the DOI Policies on Consultation with Indian Tribes and Consultation with ANCSA Corporations all require consultation.
3. Applicable Statutes, Regulations, Executive and Secretarial Orders and Memoranda, and Departmental Policies.
A. Statutes and Regulations.
(1) National Historic Preservation Act of 1966 (NHPA) (formerly 16 U.S.C. § 470 et seq.) (54 U.S.C. § 300101 et seq., as amended).
(a) Section 106 of the NHPA requires federal agencies to undertake a formal review process prior to the approval of a federal permit or the expenditure of any federal funds on a proposed project (on tribal, federal, state, or private land) that has the potential to affect historic properties. This review process requires a bureau to take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register, including archaeological sites and ceremonial sites identified by an Indian tribe or NHO (sometimes also referred to as “historic properties of religious or cultural significance”). The Advisory Council on Historic Preservation (ACHP) is the independent federal agency that promulgates the regulations implementing the NHPA and oversees the Section 106 review process. The Section 106 review process includes the requirement to invite tribes or NHOs who may have an interest in the area of potential effect to consult with the proponent bureau.
(b) When earth-disturbing activities, such as those listed in section 4.K(2), are planned, the USGS Federal Preservation Officer (FPO) must be notified. The FPO will incorporate an “inadvertent discovery” provision into project documents prior to the start of work. This type of provision provides clarity to all persons involved with the project that certain steps must be followed if any archaeological artifacts such as lithics, pottery, hearth lenses, or cultural items (human remains, funerary items, sacred objects, or objects of cultural patrimony) are encountered during any phase of the project. The provision will contain procedures for stopping work and contacting the appropriate parties to resolve the treatment of the inadvertent discovery.
(c) Failure to comply with the NHPA can result in a finding by ACHP that a bureau has foreclosed on the ACHP’s ability to comment on the undertaking. Such a finding requires the ACHP to formally request an explanation from the bureau for its failure to comply with the law, and ultimately may include formal correspondence from the ACHP to the Secretary of the Interior requesting a response to the notification of non-compliance. In addition, tribes may also allege a failure to comply with the NHPA as one of the reasons that a bureau’s action was arbitrary, capricious, and not in accordance with law in a suit challenging that action.
(d) The NHPA also contains a statutory exemption that allows information that may reveal the location of a tribal historic property to be withheld from public release and exempt from disclosure under the Freedom of Information Act (FOIA) if such disclosure could risk harm to the historic property or impede the use of a traditional religious site by practitioners. This is known as Section 304 (now § 307103 due to the reorganization of the U.S. Code; also refer to ACHP regulations at 10 CFR § 800.11(c)). Data that could reveal the location of a tribal historic property, whether obtained on the ground or by remote sensing technology, may qualify for protection from public release under this exemption.
(2) Archaeological Resources Protection Act of 1979 (ARPA) (16 U.S.C. § 470aa-mm; 43 CFR 7).
(a) The ARPA is another statute that contains provisions to protect archaeological resources from disturbance and looting. Unlike the NHPA, the ARPA only applies to federal land and tribal and individually owned trust and restricted Indian land.
(b) The ARPA provides penalties for excavations, removal, or damage to archaeological resources without an ARPA permit, as well as for the sale, purchase, or transport of these resources. They are defined in the Act as “any material remains of past human life or activities,” (including, but not limited to, pottery, basketry, bottles, weapons projectiles, tools, structures or portions of structures, pit houses, rock paintings, intaglios, graves, human skeletal remains, or any portion or piece of any of these items) that are at least 100 years old.
(c) The ARPA, like the NHPA, contains a statutory exemption to FOIA requests regarding the location of archaeological resources. Under the ARPA, only a federal land manager can make available to the public information concerning the nature and location of any archeological resource, and then only if it could be done without risking harm to the archeological resource or to the site in which it is located (16 U.S.C. 470hh(a), Disclosure of information). Data that could reveal the location of archaeological resources, whether obtained on the ground or by remote sensing technology, may qualify for protection from public release under this exemption.
(3) Indian Mineral Development Act of 1982 (IMDA), (25 U.S.C. 2101 et seq.). Refer to 43 CFR § 3100.4 - Public availability of information and 63 Fed. Reg. 52952 (Oct. 1, 1998).
(a) The IMDA was passed to provide tribes with flexibility in the development and sale of mineral resources. Under the IMDA, Congress acknowledged that data about tribal mineral resources is proprietary. The Act primarily deals with the process leading to mineral development on tribal trust lands, but it has a provision to protect tribal mineral information from public disclosure. Should the USGS be selected to provide data on tribal mineral reserves for the purpose of development, this arrangement would be covered under the Act. However, for USGS activities that are not in furtherance of tribal mineral development, the IMDA provides evidence that Congress considers such data proprietary. Under the Act, the DOI will hold as privileged proprietary information all projections, studies, data, or other information concerning a Minerals Agreement under IMDA, regardless of the date received, related to terms, conditions, or financial return to the Indian parties; and the extent, nature, value, or disposition of the Indian mineral resources; or the production, products, or proceeds thereof (43 CFR 3100.4). “Minerals” as defined in the Act include both metalliferous and non-metalliferous minerals; all hydrocarbons, including oil and gas, coal and lignite of all ranks; geothermal resources; and includes but is not limited to sand, gravel, pumice, cinders, granite, building stone, limestone, clay, silt, or any other energy or non-energy mineral (25 CFR 225.3).
(b) Because Congress has taken the position that information pertaining to “minerals,” as defined at 25 CFR 225.3 on Indian lands is proprietary information, USGS programs that are planning any activities associated with the gathering of data that could play a role in ascertaining potential mineral deposits on tribal lands must ensure that a formal written offer of consultation is provided both by email and hard copy to the tribal leader(s) whose tribal lands fall within the proposed project area, and should be prepared to exempt any such information from disclosure. (See K.1.b below for details.)
(4) Freedom of Information Act (FOIA) (5 U.S.C. § 552). The FOIA provides the public the right to request access to records from any federal agency. Agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions. Exemptions and confidentiality are covered under 5 U.S.C. § 552(b)(1)-(9). The following are examples of FOIA exemptions that possibly could be utilized if information/data obtained by USGS conflicted with tribal interests. However, the determination as to whether information in the possession of USGS is a federal record and is subject to FOIA or falls under any of its exemptions is the responsibility of the USGS FOIA Officer and the USGS Director.
(a) FOIA Exemption 3: Statutory exemption. Information that a statute specifically exempts from disclosure by terms that allow no discretion on the issue of release, or in accordance with criteria established by that statute for withholding or referring to particular types of matters to be withheld. The NHPA, ARPA, and IMDA all contain statutory exemptions to the release of certain data under FOIA.
(b) FOIA Exemption 4: Pertains to proprietary commercial or financial information, such as Indian mineral resources or other data owned by a tribe that, if disclosed, could adversely affect its commercial interests.
(c) FOIA Exemption 9: Information containing geological and geophysical information and data (including maps) concerning wells.
(5) The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), (25 U.S.C. § 3001 et seq.). The NAGPRA has two primary functions. The Act sets forth requirements and procedures for the return of human remains and funerary objects, sacred objects, and objects of cultural patrimony to tribes and NHOs (refer to section 2.I) from repositories, such as universities or museums, that receive federal funds and from federal agencies. It also requires federal land-management agencies to consult with federally recognized Indian tribes and NHOs prior to issuing permits for the intentional removal or excavation of Native American human remains, funerary objects, sacred objects, or items of cultural patrimony from federal lands or tribal lands. These functions would not normally involve USGS personnel. However, the Act also recognizes the potential of an “inadvertent discovery” while working on federal or tribal lands. Any person who knows or has reason to know that they have discovered inadvertently any human remains, funerary objects, sacred objects, or objects of cultural patrimony on federal or tribal lands must cease work and notify certain parties immediately. (See details at 4.K.3.d below.)
B. Executive Orders and Secretarial Orders. In many instances, Executive Orders apply to agencies on an agency-wide or program-wide basis rather than on a project-by-project basis. However, staff responsible for working or coordinating with tribal governments should be familiar with applicable Executive Orders and act in accordance with the intent of these directives. Orders specific to consultation with federally recognized Indian tribes include:
(1) Executive Order No. 13175, “Consultation and Coordination with Indian Tribal Governments” (2000), directs federal agencies to respect tribal self-government and sovereignty, tribal rights, and tribal responsibilities whenever they formulate policies “significantly or uniquely affecting Indian tribal governments.” The Executive Order applies to all federal agencies other than those considered independent federal agencies, encouraging “meaningful and timely” consultation with tribes, and consideration of compliance costs imposed on tribal governments when developing policies or regulations that may affect Indian tribes.
(2) Secretarial Order No. 3317, “DOI Policy on Consultation with Indian Tribes” (2011), defines provisions for enhancing the Department’s consultation processes with tribes, including requiring consultation, or the offer of consultation, at the initial planning stage of a project. This Secretarial Order effectuated the current DOI Policy on Consultation with Indian Tribes, as well as the DOI Policy on Consultation with Alaska Native Corporations.
(3) Secretarial Order No. 3335, “Reaffirmation of the Federal Trust Responsibility to Federally Recognized Indian Tribes and Individual Indian Beneficiaries” (2014) which set forth guiding principles that DOI Bureaus and offices must follow to ensure that they fulfill their federal trust responsibilities.
C. Departmental Consultation Policies.
(1) DOI Policy on Consultation with Indian Tribes (December 1, 2011). The policy requires that DOI Bureaus and offices consult on a government-to-government basis with federally recognized Indian tribes about any planned federal activity that can be categorized as a “Departmental Action with Tribal Implications.” This includes any USGS “operational activity that may have a substantial direct effect on an Indian Tribe on matters including, but not limited to tribal cultural practices, lands, resources….” The policy also incorporates by reference any statute (such as the NHPA) that requires government-to-government consultation. The policy requires that when considering such an action, a bureau must notify the appropriate tribe of the opportunity to consult on the project. Additionally, section IV of the policy states, “Methods that ensure accountability and reporting are essential to regular and meaningful consultation. The heads of DOI Bureaus and Offices shall include appropriate performance measures consistent with this Policy in future annual performance plans of their employees.” (Refer to section 4 below for information on implementation of the policy.)
(2) DOI Policy on Consultation with Alaska Native Claims Settlement Act (ANCSA) Corporations (August 10, 2012). The policy mirrors the DOI Policy on Consultation with Indian tribes with the exception that consultation is not carried out on a government-to-government basis. Any planned activity that may affect ANCSA Corporation “land, water areas or resources” will trigger the need to invite consultation under this policy.
4. Responsibilities.
A. Director, Deputy Director for Administration and Policy, Deputy Director for Operations. The USGS Director has final authority and responsibility for Bureau compliance with the federal trust responsibility to, and the government-to-government relationship with tribes. When consultations with tribes are planned, the Director, or their designee, determines the appropriate senior executive to represent the USGS. The Deputy Directors are responsible for ensuring the effective implementation of the Bureau’s obligations under the federal trust responsibility.
B. Associate Directors (ADs). ADs are responsible for ensuring that the work being performed in their respective mission areas meets the DOI and USGS requirements under the federal trust responsibility, the government-to-government relationship, and various other legal and policy requirements pertaining to tribes, including offering, where appropriate, tribal consultations. ADs act in the best interests of the Bureau when performing interactions with tribes. These interests include fostering and maintaining positive relationships with tribes for the benefit of all current and future USGS programs and activities. ADs may, at the request of the USGS Director, serve as leaders representing the Bureau during tribal engagements when higher-level USGS representation is needed. ADs are also responsible for identifying Mission Area Tribal Advisors, in consultation and coordination with the OSQI Director, and will consider feedback provided by the Office of Tribal Relations (OTR) regarding the tribal-related activities performed by their selected Tribal Advisors.
C. Regional Directors (RDs). RDs are responsible for ensuring that the work being performed in their regions meets the DOI and USGS requirements under the federal trust responsibility, the government-to-government relationship, and the other various legal and policy requirements pertaining to tribes, including offering, where appropriate, tribal consultations. Given their awareness of multiple projects of various mission areas that may impact tribes in a particular geographic area, RDs will normally serve as field executives and leaders representing the Bureau during tribal engagements when higher-level USGS representation is needed (except when the USGS Director has requested representation by a mission area AD). RDs will name and provide oversight of Regional Tribal Liaisons, in consultation and coordination with the OSQI Director, and will consider feedback from the OTR regarding the tribal-related activities performed by their selected Tribal Liaisons.
D. Office of Science Quality and Integrity (OSQI). The Office of Tribal Relations resides in OSQI. The OSQI Director works with other senior leaders to build partnerships between the USGS and tribal governments, ANCSA Corporations, and other federal agencies to facilitate access to and collaborate on USGS research. OSQI approves tribal consultation notices on behalf of the Bureau. OSQI is also responsible for maintaining USGS policy related to tribal relations. In the event that a tribe expressly objects to a proposed USGS action pertaining to trust lands, the OSQI Director will work with the USGS Director, in consultation with the cognizant AD and (or) RD, to determine how best to proceed.
E. Office of Tribal Relations (OTR). OTR is the entity responsible for Bureau-level organization, coordination, and facilitation of USGS activities involving tribal governments. This work includes, but is not limited to, recommending Bureau-wide policies and coordinating government-to-government communication. The OTR staff consists of two full-time personnel (the Head of OTR and the Bureau Tribal Partnership Coordinator) and all persons who serve collaterally as Mission Area Tribal Advisors (MTAs) or Regional Tribal Liaisons (RTLs). All OTR staff will have a performance element on tribal relations.
The Head of OTR serves as the Tribal Liaison Officer for the USGS as specified in the DOI Policy on Consultation with Indian Tribes, which includes responsibilities such as (1) working within the USGS to achieve compliance with the consultation policy and future policies related to Executive Orders and government-to-government consultation policies; (2) promoting and facilitating consultation and collaboration between tribes and the USGS; (3) advocating opportunities for and consideration of the positions of tribes, as consistent with the USGS mission; (4) serving as the principal point of contact for the DOI Tribal Governance Officer concerning compliance with the consultation policy; (5) striving to enhance a trusting and on-going relationship with tribes, consistent with applicable law and executive orders; and (6) serving as an initial contact for tribes to request or inquire about consultation when it is unclear whom to contact in the USGS. In addition, the Head of OTR will provide (1) advice and guidance as needed to MTAs and RTLs and (2) feedback semiannually to ADs and RDs about how their respective MTAs and RTLs have contributed to the OTR team and its activities.
F. Bureau Tribal Partnership Coordinator. The Bureau Tribal Partnership Coordinator is located in the OSQI and serves as a member of the OTR to build individual relationships and partnerships between the USGS and tribal governments and organizations. The Coordinator develops partnerships with tribes to help provide science to assist with tribal information needs, promotes opportunities for USGS to collaborate with tribes, provides training to USGS employees on tribal engagement, and serves as an expert advisor on USGS-related tribal interactions for the OSQI Director and Head of OTR.
G. Mission Area Tribal Advisors (MTAs). MTAs, who serve as members of the OTR, report to the ADs with respect to their tribal duties mission areas. MTAs are responsible for informing and coordinating with the Head of OTR and the Regional Tribal Liaisons. They work in conjunction with the Head of OTR to assist managers working with tribes in their respective mission areas with opportunities and issues involving work with tribal Governments and American Indian/Alaska Native communities. They also bring to the attention of the Head of OTR and their senior leadership any scientific, cultural, or educational concerns that may arise pertaining to tribal governments, tribal communities, and American Indian/Alaska Native students.
H. Regional Tribal Liaisons (RTLs). RTLs, who serve as members of the OTR, report to RDs with respect to their tribal liaison duties. They work in conjunction with the Head of OTR and the Bureau Tribal Partner Coordinator to assist managers within their respective regional areas regarding opportunities and issues involving work with tribal governments and American Indian/Alaska Native communities. Along with the with the Head of OTR and USGS executives, RTLs serve as liaisons between the USGS and tribes. RTLs also bring to the attention of the Head of OTR and their regional leadership any scientific, cultural, or educational concerns that may arise pertaining to tribal governments, tribal communities, and American Indian/Alaska Native students.
I. Center Directors. Center Directors, as senior USGS officials, should maintain good relationships with tribes and ANCSA Corporations in their areas and seek opportunities to build partnerships between the USGS and tribes to help fulfill DOI trust responsibilities and the government-to-government relationship. They should keep RDs and RTLs apprised of these activities.
J. Federal Preservation Officer (FPO). Section 110 of the NHPA requires each federal agency to designate a qualified person to serve as the FPO responsible for coordinating an agency’s activities under the NHPA. The USGS FPO is located in the Office of Administration’s Facility Asset Management Branch. Examples of activities for which the FPO is consulted are those that may trigger a section 106 review under the NHPA.
K. Program Offices and Principal Investigators. The responsibilities of program offices and principal investigator in relation to the activities being conducted include the following:
(1) Consultation with tribes should occur as early as possible (preferably in the initial planning stage) whenever considering an action with tribal implications. Tribal implications include any activity which may have a substantial direct effect on tribes, tribal lands, or resources.
(a) Prior to any activities or collections of data that could have a substantial direct effect on tribal or ANCSA Corporation lands or resources, offer consultation through a notice provided no less than 30 calendar days in advance. While 30 days is in accordance with DOI policy, 45 days’ notice is preferable because many tribal councils meet on a monthly or bi-monthly basis.
(b) If an activity associated with the gathering of data that could play a role in ascertaining potential mineral deposits on tribal lands, contact the Head of OTR. Send a formal written offer of consultation both by email and hard copy to the tribal leaders(s) of tribes whose tribal lands fall within the proposed project area as early as possible (i.e., earlier than 45 days prior to the planned data acquisition). Be clear about the nature of planned activity, how the data could be used to identify mineral resources, and that the data collected could be made public. At the same time, contact the appropriate BIA Regional Office, which will help determine whether the activity is subject to the IMDA and advise USGS and the tribe about safeguarding tribal proprietary mineral data. Also, ensure that the tribe confirms the offer for consultation in writing. If the tribe does not respond, notify the BIA Regional Office so that it can assist in determining whether the tribe has received the offer to consult.
(c) With the assistance of the RTL or MTA, draft letters to offer consultation and submit them to the Head of OTR for approval.
(2) Ensure appropriate notifications are made prior to conducting work that could potentially impact Native American cultural or property interests such as work that includes earth disturbing activities, including but not limited to, digging, drilling, coring, blasting, trenching or rock sampling, or the installation, maintenance, or removal of equipment or construction of a structure that could impact any such property that may exist within the project area—known under the NHPA as the “area of potential effect.” Any such activities could trigger the requirements of the NHPA, the ARPA, or the NAGPRA because they may harm historic properties, archaeological resources, or even burials. (Maintenance or removal of equipment that does not require earth disturbance would not trigger these statutes.) Earth disturbing work or data releases undertaken as part of a federal emergency response may necessitate non-compliance; USGS leadership will provide guidance in such situations. Other USGS activities that could potentially impact federally recognized tribes and ANCSA Corporations and thus could trigger compliance with the DOI policies include remote sensing activities (excluding LandSat) that could reveal proprietary mineral data obtained from tribal or ANSCA Corporation lands, or reveal the location of a tribe’s historic or sacred sites.
(a) If any of the types of activities listed above would potentially be involved in a planned research project, program office employees and principal investigators must notify the FPO and the Head of OTR to determine if the proposed undertaking may trigger the requirements of the NHPA, the ARPA, or the NAGPRA, and to obtain assistance in compliance and consultation.
(b) Consult with the Head of the OTR and the appropriate RTL or MTA to ensure compliance with applicable policies and statutes early in the project planning process.
(3) When planning and conducting all fieldwork on tribal lands:
(a) Make diligent efforts to be aware and respectful of sacred sites and to respect access restrictions and ceremonial observances. Contact the federal land manager of the work site and inquire about the locations of and any access restrictions concerning sacred sites. Avoid adversely affecting the physical integrity of such sites. If field work is anticipated at the location of a sacred site, comply with the directives of the federal land manager to ensure that no such sensitive sites are adversely impacted while conducting work on federal lands.
(b) Inquire about and conduct activities in compliance with tribal statutes, regulations and protocols, and never touch or remove artifacts or any tribal objects without prior permission from an official representative of the tribe. Work only in areas and with techniques previously approved by the appropriate tribal official. Clarify any ambiguities with the tribal official before proceeding. USGS personnel in the field are representing the Bureau as a whole; therefore, any missteps or violations of tribal agreements, statutes, regulations or protocols can damage relationships that have taken time and effort to establish.
(c) Comply with any corporation rules or protocols, as well as with state and Federal statutes and regulations when undertaking work on ANCSA Corporation lands. The cautions that apply to conducting work on tribal lands also apply on ANCSA lands. Resolve any ambiguities with the appropriate ANCSA Corporation official before commencing.
(d) Cease work immediately in the event of inadvertent discovery of human remains, funerary objects, sacred objects, or objects of cultural patrimony. In such instances, provide immediate telephone notification of the discovery, with follow-up written confirmation, to either the responsible federal agency official (if on federal lands) or tribal leadership (if on tribal lands). At the same time, notify the Head of OTR and the FPO to ensure a coordinated response effort to protect the human remains, funerary objects, sacred objects, or objects of cultural patrimony.
(e) Ensure that any contractors and/or non-federal partners are involved in the project abide by the requirements of this SM chapter. For example, a contract must include language stating that the contractor must provide immediate notification of inadvertent discovery to the principal investigator in the case of (d) above. Likewise, the contract must require that the contractor or non-federal partner safeguard and prevent from release any data that a tribe has identified as proprietary or culturally sensitive.
(4) When storing data internally, clearly mark any material that a tribe or ANCSA Corporation has deemed sensitive to ensure the data are not released accidentally.
(5) When disseminating information deemed sensitive by tribes or ANCSA Corporations, do not disseminate information about archaeological resources or about locations of historic properties of religious and cultural significance to tribes and NHOs. Such information should not be included in USGS products, such as publications, topographic maps, and publicly available digital databases, unless the site is already well known to the public, such as Mato Tipila (Devils Tower) or Chaco Canyon, or if the appropriate Indian tribe or federal authority has authorized the release of such information. When in doubt, contact the FPO and the Head of OTR before releasing such information. In some cases, information that a site is considered sacred (and the affected tribe is concerned that information revealing its location or attributes could lead to harm to the site) may not become known to the USGS until after the product is distributed. Should this occur, program office employees and principal investigators will work with the affected entity to try to obscure the feature from its map, digital, and other products, provided the attempt to mask the location of the site is appropriate and feasible.
/s/ Jim Reilly 09/14/2020
______________________________________________ ______________
Jim Reilly Date
Director