Consulting With Indian Tribal Governments At Superfund Sites : A Beginner'S Booklet

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Notice
This document is intended solely for the guidance of Federal
Government personnel. Officials may decide to follow the
guidance provided in this document or to act at variance with
the guidance based on an analysis of site circumstances. The
guidance is not a regulation and does not create any legal
obligations or any right or trust responsibility.
EPA generally seeks to consult with tribes on Agency actions that
may affect tribes, including Superfund sites of tribal interest,
consistent with: EPA's Policy for the Administration of
Environmental Programs on Indian Reservations (EPA's
Indian Policy); the April 29,1994, Presidential Memorandum on
Government-to-Government Relations with Native American Tribal
Governments; and the Federal Government's trust responsibility
to federally recognized Indian tribes.
This document does not specifically address consultation
requirements under Executive Order 13175, 65 Fed. Reg. 67249
(November 9, 2000 ). EPA's approach to consultation under
that Executive Order is described in Review of Environmental
Protection Agency Draft Guidance for Implementing Executive
Order 13175, Consultation and Coordination with Indian Tribal
Governments, 71 Fed. Reg. 20314-20329 (April 19, 2006). This
Superfund document refers to the consultation EPA undertakes
generally, as a matter of policy.

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INTRODUCTION
Early and meaningful tribal involvement at Superfund sites of
tribal interest is consistent with the federal trust responsibility to
tribes and furthers EPA's overall goal of protecting human health
and the environment.
This booklet is intended to introduce EPA staff and managers to
the basics of government-to-government consultation with Indian
tribal governments within the context of Superfund. It provides
a beginner's background to a subject matter that involves many
important, nuanced, historical, complex, and challenging issues.
This booklet, then, is not exhaustive in scope; rather, it is a
starting point.
A list of resources provided at the end of the booklet will help you
further explore the concepts and issues introduced here.
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STATUTORY BACKGROUND
The Comprehensive Environmental Response, Compensation,
and Liability Act (CERCLA or Superfund) provides broad federal
authority to respond to releases of hazardous substances, as
well as pollutants or contaminants.
Pursuant to CERCLA section 126, the governing body of a
tribe is afforded substantially the same treatment as states
for many response related purposes, which include:
~ notification of releases,
~ consultation on remedial actions,
~ access to information, and
~ roles and responsibilities under the National Contingency
Plan (NCR).
CERCLA section 104 also allows EPA to enter into
cooperative agreements with eligible tribes to perform or
participate in Superfund-eligible site response activities.
(EPA retains final oversight authority.}
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KEY TERMS AND CONCEPTS
Consultation generally consists of meaningful and timely communication between
EPA officials and tribal government officials in developing Agency actions that
affect tribes. Consultation means open sharing of information, the full expression
of tribal and EPA views, a commitment to consider tribal views in decision-making,
and respect for tribal self-government and sovereignty.
Providing complete, timely, accurate, and understandable information to a
tribal government about a site typically is a key component of consultation—but
consultation means more than simply providing information about actions
EPA plans to undertake and then allowing comment. The consultation process
includes seeking, discussing, and considering the views of affected federally
recognized tribal governments at the earliest practical time. Consultation
works toward the goal of consensus and mutually-acceptable resolutions, while
recognizing that goal might not be achieved.
And, as with all aspects of the Superfund response process, the consultation
process should be well-documented at each step of the way to reflect the
concerns of the affected tribe. This approach also should help protect the
interests of the affected tribe and to show the scope and extent of tribal
involvement and EPA's consideration for tribal interests.
Governraent-to-government relationship
The relationship between federally recognized Indian tribal governments and
the federal government is a unique one. Indian tribes possess an inherent
sovereignty and are sometimes described as domestic dependent nations.
Because each Indian tribe is a distinct sovereign government, EPA officials (and
those from other federal agencies) are expected to interact with tribal officials as
representatives of their government.
A Bepiii'i s Booklcl
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KEY TERMS AND CONCEPTS
Consultation vs. Community Involvement
It is important to distinguish between government-to-government consultation
and community involvement activities. EPA carries out community involvement
activities pursuant to CERCLA and the National Contingency Plan (NCP), but
efforts typically involve the members of the tribal community directly and are
normally separate from consultation or discussions with the tribal government.
Consultation occurs in addition to the public participation process.
Where appropriate, a Community Involvement Plan should be developed in
consultation with the tribal government since the tribe may be able to help EPA
design the communication approach that best reflects the tribal community's
practices. The Community Involvement Plan can then be tailored more directly to
the community's needs.
Federal Indian Trust Responsibility
The federal government has a "trust responsibility" to federally recognized
Indian tribes that arises from treaties, statutes, executive orders, and the
historical relations between the United States and Indian tribes. Like other
federal agencies, EPA must act in accordance with the trust responsibility—which
generally includes consulting with and considering the interests of tribes—when
taking actions that may affect tribes or their resources. The trust responsibility
also includes protecting tribal sovereignty.
Indian I American Indian / Native American I Alaska Native
The terms "Native American," "American Indian," "Indian," and "Alaska Native"
can be used in a very broad sense to describe members of ethnically distinct
groups of United States citizens who are indigenous to North America. All of these
terms are generally accepted, but it is preferable to use individual tribal affiliation
whenever possible.
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KEY TERMS AND CONCEPTS
Indian tribe
For the purposes of CERCLA, an "Indian tribe" is an entity that appears on the list
of federally recognized tribes published annually by the Bureau of Indian Affairs
(BIA) of the Department of the Interior (DOI).
A member of an Indian tribe is a person who meets membership requirements
under the laws of that tribe. Each tribe has its own laws and methods of
determining membership, but typically membership eligibility is based on a
person's ancestry. Some tribes have additional membership criteria, such
maternal or paternal descent. Therefore, ultimately, Indian tribal governments
determine who is considered an Indian.
EPA can consult—on a government-to-government basis—only with federally
recognized tribes. However, keep in mind it is always important to include all
interested parties in the process in an appropriate manner.
Indian Country
This legal term is defined by federal statute to include all land within federal
Indian reservations, dependent Indian communities, and certain other lands
owned by Indians. Tribal land issues can be quite complicated, so talk to your
regional Indian Program representative, Regional Counsel, or the Office of
General Counsel for more in-depth information.
Multiple tribes
More than one tribe could have interest in a site. In such a situation, EPA should
offer to consult with all the interested tribes. In some cases, tribes may form a
group to speak with one unified voice. But if this does not happen, EPA should
continue to consult with all interested tribes. (Note: This booklet uses the singular
"tribe," but it is assumed to include the plural if applicable.)
A Bt'tiiiiiii'is Booklet
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GETTING THE BALL ROLLING
When arriving on-scene, identifying a new site, or inheriting a site as it reaches
your stage of the Superfund process, keep the possibility of tribal interest in mind
and try to actively determine whether there is tribal interest.
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~ From the start: Involve your regional Indian
Program representative, Superfund tribal
program staff, and Regional Counsel or Office
of General Counsel early.
~ Do your homework: As part of your site
background research, determine whether the site
is potentially of tribal interest.
~ Contact the tribe: The golden rule of tribal
consultation is: the sooner, the better!
~ Consult with the tribe about the consultation
process: Attempt to reach agreement about
the process to use. ^¦
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GETTING THE BALL ROLLING
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Involve your regional Indian Program representative, Superfund tribal program
staff, and Regional Counsel or Office of General Counsel early. They can provide
invaluable information and assistance throughout the process.
Did you know...
A site potentially could be of tribal interest even if it is not located in Indian country
or if it is on a tribe's land where tribal members no longer live. For example, a tribe
might have a legally recognized interest in a site where the tribe historically resided.
A tribe might have a treaty right to engage in certain uses, such as to take water or
to hunt, fish, or gather. A tribe also might have rights regarding areas of cultural or
religious significance. Such interests might not be readily apparent, so be sure to
confer with your regional Indian Program representative, EPA Regional Counsel, or
Superfund program tribal staff for advice.
Do your homework
Potential tribal interest should be part of your background research for the site,
but it might not be obvious. This is where your Superfund tribal coordinator can
help.
A tribe is most likely to have an interest in a site actually located in or near Indian
country or directly bordering tribally held land. Land status, tribal ownership
issues, and treaty rights can be very complicated, and a tribe may have an
interest that makes consultation appropriate even for a site outside a reservation
(see "Did you know..." above). So, again, be sure to confer with your regional tribal
program staff, EPA Regional Counsel, or the Office of General Counsel.
A Beyinrier's Booklet
9
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GETTING THE BALL ROLLING
If there is an indication of potential tribal interest, go a step further and do some
background research on the tribe. Some information could be beneficial in the
long run regarding, for example, past site involvement, customs and traditions,
and tribal government structure.
Even if there is no initial indication of tribal interest, keep in mind the possibility of
tribal interest throughout the process.
Contact the tribe
Once you have determined that a site is of potential tribal interest, you should
contact the tribe and inquire whether and how the tribe is interested in entering
into consultation with EPA. The golden rule of tribal consultation is: the sooner,
the better!
First and foremost, you should coordinate closely with your EPA regional
Superfund tribal program staff when approaching a tribe, but here are general
tips to get you started:
~ Initiate official contact with the tribal government via letter from the regional
EPA Division Director level or higher.
~ Address the letter to the tribal Chairperson (or official designee) with a copy
going to the tribe's environmental director.
~ Propose specific consultation options, perhaps offering to develop a
consultation plan.
Keep in mind...
Always maintain the appropriate staff/management level of
participation at meetings: EPA staff can meet with tribal staff, but
the Division Director (or higher) meets with the tribal Chairperson or
designated representative.
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GETTING THE BALL ROLLING ]
Keep in mind that tribal governments sometimes have restricted resources or
other limiting circumstances—for example, tribal councils in Alaska typically meet
monthly except during hunting or fishing seasons, during which time they don't
meet. If a tribe does not respond within a requested or generally reasonable
amount of time, you could:
~ Follow up with the tribe at staff level by phone calls or e-mail to informally
inquire about the tribe's decision.
~ Send the tribe another letter—if calls and e-mails don't yield useful
information—documenting EPA's efforts to establish consultation while
reaffirming EPA's continued interest in consulting with the tribe regarding the
site.
If a tribe does not immediately get involved, send site updates to the tribal
officials throughout the process so that they are aware of progress at the site and
know that the invitation for consultation is still open.
Consult with the tribe about the consultation process
Once a tribal government officially has confirmed an interest in establishing
consultation with EPA, it's good to get everyone together to sit down and develop
a game plan with the tribe—consult with the tribe about the consultation
process! Each tribal government will have its own preferences for a consultation
process with EPA. It is important for EPA to reach a shared understanding of the
appropriate approach with the tribe at the beginning of the process.
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OTHER FACTORS AND SUGGESTIONS
FOR WORKING WITH TRIBES
Be aware of your perceptions and be open-minded
It is natural for us to apply our own experiences, based on our own way of life,
to new situations—such as a new hazardous waste site. However, we need
to be aware that certain aspects—or the entire lifestyle—of a tribe can differ
greatly from mainstream U.S. culture. When working with a tribe, developing an
awareness of these differences can facilitate communication with tribal members
and help you better understand unique issues and dynamics at play.
Tribe Specific and Site-Specific Factors
Get to know the tribe. Find out how the tribal government is set up. Don't assume
you know everything about a particular tribe because you consulted with a
different tribe at a different site. Each tribe is unique—with its own traditions,
politics, and lifestyle.
Being aware of a tribe's unique lifestyle or concerns also can help in identifying
culturally specific environmental factors to consider when dealing with a site.
Review Historical Documents
Ask the tribe whether it has any historical documents (such as a treaty) that are
relevant to the site. Allow the tribe to explain why the document is important and
how it relates to the site or the tribe's issues of concern. The document could
have information that is integral to the response activity at the site.
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OTHER FACTORS AND SUGGESTIONS
Privileged or Confidential Cultural Information
Although it is important to take into consideration cultural factors at a site,
sometimes tribal governments do not want to disclose specific information
regarding location, ritual, method, or quantity of something. A tribe's reasons for
not wanting to disclose information could include concern about artifact thieves
or a desire to protect culturally or religiously restricted knowledge. So before
preparing records memorializing consultation activities or other information from
tribes, it is good practice to discuss with each tribe whether there are issues
of unique sensitivity to the tribe that might affect the level of detail the records
should contain.
Make sure to provide the tribe with enough information so that it can make an
informed decision regarding disclosure. Explain how the information will be
used and identify statutory and regulatory requirements that may require public
disclosure. Explain also the effect nondisclosure has on the Superfund process,
which by law includes some requirements concerning documentation of decisions
and public participation.
Finally, if the tribe makes an informed decision not to provide specific data about
cultural factors, try to find other ways to document the tribe's general concerns.
A Beginner's Booklet
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OTHER FACTORS AND SUGGESTIONS
National Historic Preservation Act
Any CERCLA site could include properties that qualify as "historic properties"—which
could include properties of historic significance to tribes—under the National Historic
Preservation Act(NHPA). You should, as appropriate, work with the relevant tribal
historic preservation officer or designated tribal representative {which may be
a tribal cultural resources office) to consider impacts on historic properties. It
also may be appropriate to work with the relevant state historic preservation
officer. You should consult your region's historic preservation officer and Regional
Counsel for assistance.
Tribes and PRP-lead sites
Generally, a tribe should be involved at a PRP-lead (potentially responsible party)
site at least to the extent it would be involved at a Fund-lead site. You may want
to explore whether there are legal and practical options that would enable EPA or
the PRP to fund tribal involvement.
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KEEP IT GOING...
EPA is better able to fulfill its responsibility to "protect human health and the
environment" if the Agency utilizes the tribal consultation process by taking
advantage of the insight and knowledge tribal governments can provide.
Incorporating the views and concerns of Indian tribal governments throughout
the Superfund response process may help to bring about more effective
implementation and collaboration on actions that are beneficial to public health
and the environment in Indian country and elsewhere.
This booklet is intended to give you a brief introduction to a complex and nuanced
subject, in the back of this booklet you will find a list of resources for further
exploration. And remember: your first and foremost resource is your EPA regional
Superfund tribal program staff.
A Beginner's Booklet
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FURTHER READING AND REFERENCE
EPA Indian Program Resource Guide
[http://www.epa.gov/indian/resource/resource.htm]
Working Effectively with Tribal Governments (online training; EPA intranet)
[http://intranet.epa.gov/opptsval/training/tribal/EPA/mainmenu/iaunchPage.htm]
Federal Laws, Regulation and Guidance
[http://www.epa.gov/indian/laws3.htm]
Executive Orders, Policies and Initiatives
[http://www.epa.gov/indian/policyintitvs.htm]
For more info on the National Historic Preservation Act: CERCLA Compliance with
Other Laws Manual: Part II. Clean Air Act and other Environmental Statutes and
State Requirements
[http://www.epa.gov/superfund/resources/remedy/pdf/540g-89009-s.pdf]
FAQs Concerning American Indians and Alaska Natives (from Department of
Health and Human Services)
[http://aspe.hhs.gov/SelfGovernance/faqs.htm]
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