by Tribal Specialist Earl Evans and Founding Partner Marion Werkheiser
Are you anxious about working with American Indian tribes? Does your company leave it to federal agencies to consult with tribes, cutting you out of the process? It doesn’t have to be that way. Engaging with tribes—communicating directly to understand their concerns and values, and seeking common ground—is important for developers seeking to manage risk to their projects. In our work at Cultural Heritage Partners, we advise real estate developers, energy companies, tribes, and other consulting parties on how to create relationships that can promote appropriate resolution of adverse effects under the National Historic Preservation Act (NHPA) and the National Environmental Policy Act (NEPA) and allow a project to receive federal permits.
Sometimes engaging with tribes is unnecessarily difficult because people attempting outreach do not have a good understanding of the social, legal, and political context of American Indian tribes in general and the particular tribe involved. Whether you are employed by an energy company, federal agency, developer, regional authority, or other entity, chances are there is a tribal group near you who might be impacted by your activities, or have the potential to impact your work. Proactive steps to understand tribal perspectives and issues are essential for making these relationships productive. Here are our top ten things you should consider as you create your tribal engagement strategy:
1. Every tribe is different, you can’t generalize
There are almost six hundred different American Indian tribal nations in the United States. They have different cultures, languages, values, and perceptions of the Universe. They have their own governments, laws, rules, regulations and policies. They have different perspectives about consultation and how they want things done. Learn about those in your company’s geographic area of interest.
While federally recognized tribes have a special status in the Section 106 and NEPA review processes, don’t forget about state recognized tribes. It is important to engage with them early and often to develop relationships and surface any concerns about your project.
2. Learn who makes the decisions in the Tribe(s) and who is empowered to work with you
Just like the Tribe will want to work with the person in charge in your organizational chain of command, you need to know who makes the decisions for the Tribe. For some, it is a governing body of several people or several groups of people. For others, a single person is empowered for the Tribe in certain matters. You need to know who that is, and likewise, assign someone with decision-making authority to be the primary contact with the Tribe(s) with whom you are dealing.
3. Respect Treat tribal leaders the way you would other government leaders, sovereigns, or CEOs of a major corporation
Tribes have traditional and scientific knowledge about the areas of cultural, religious and other concerns for them. That knowledge should be respected and valued by your employer and their representatives. Respect the fact that American Indian tribes are nations with their own governments, and a constituency to look after the same as the United States. Treat Tribal Leadership the same way you would treat the President of the United States or the CEO of a major corporation. It is very important to demonstrate respect for their role in their tribal nation, in addition to their role in the process and the value they bring to the table.
4. Understand tribal areas of concern can change – and that’s to be expected
Although many American Indian tribes have old, in some cases, ancient knowledge, no one knows everything. Just as we all grow and evolve, so do Tribes. Their knowledge about their ancestors, where they lived, worked, played, worshipped, is improving. Their perceptions of how to address those aspects of their past is evolving. So as they learn more about the cultural properties that may be impacted by your project, and other locations and geographies, this may cause their perceptions on addressing those things to change.
5. Tribes may have a lot of things going on with regulatory agencies, so their stance on particular projects might be influenced by matters beyond your knowledge or control
Believe it or not, sometimes it’s not you! Sometimes federal agencies that may be responsible for handling tribal consultation on behalf of companies mess up, and the company has mud on its face. It’s important to distinguish your employer’s position from that of any federal agencies that might be involved in a consultation. Don’t assume Tribes are against your project. They may have a strained relationship with a federal agency that has nothing to do with your company or your project.
6. Thoughtful gifts can go a long way
One of the ways to connect is to learn the culture of the Tribes with whom you are dealing, and find something unique about them to fashion into a gift for a first visit that shows consideration and respect. Or, learn about the tribal representatives you are meeting with and find something unique pertaining to their interest(s).
7. Listening is really crucial. Don’t assume you know what their concerns are
Ask them what their thoughts are, how they view the project or issues. Learn about them, ask questions, and let them learn about you. What you may think is just small talk may be the most important part of the conversation to a tribal leader, and most likely it will dominate your first interactions with tribal members. Most tribal people aren’t as concerned with your position as they are in learning who you are as a person and understanding your motivations.
8. Hire Professional Help
If you don’t have someone within your company with tribal expertise, consider engaging professional help. An experienced citizen of an American Indian tribe with experience in consultation can help you navigate cultural sensitivities. Someone with pre-established relationships in Indian Country can alleviate significant risks while someone inexperienced can cause delays that should not have occurred.
9. Training is a MUST!!
Even if you empower a consultant or other tribal liaison to design and execute your tribal engagement strategy, at some point and time, key leadership of your internal team also needs to receive training in creating constructive engagement with Indian tribes including cultures, protocols, treaty rights, and the world views of the Indian tribes impacted by your company. Often times, the tribes themselves will assist with such training. This will help the company gain greater insight to why Indian tribes have the concerns they do, and improve internal communications between the designated liaison and others within you company, as well as your interactions with tribal officials.
10. Don’t Wait on the Federal Agency to Do It For You
Often times some federal agencies will discourage applicants from contacting Indian tribes. Sometimes this is due to consultation being a government-to-government process between the Tribe and the applicable Federal agency (and pushed to proceed that way by either the agency or the Tribe), or due to the Federal agency simply desiring to control the process. But there is another way. Whether or not a federal agency defers to an applicant to conduct consultation, establishing your own internal tribal engagement plan will be essential to moving consultations forward, whether by the applicant, or by the Federal agency. Also, sometimes consultations go sour because the Federal agency did not adhere to effective methods of tribal consultation. With the right team in place, you can often overcome such difficulties.
We hope this has been useful advice for creating positive, proactive, long-term relationships with the tribes associated with your projects. If you desire additional training, consider taking the 4-6 hour online Native American Partner course in our historic preservation leadership program ARCUS, which was curated and written by Earl Evans. Additionally, if you have a specific matter that could benefit from additional advice, please feel free to reach out to one of our tribal law specialists:
Marion F. Werkheiser
Attorney at Law
703.489.6059
marion@culturalheritagepartners.com
Earl Evans
Tribal Specialist
earl@culturalheritagepartners.com