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Understanding Consultation

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FDOT | EMO | Native American Coordination | FAQs

"A dialogue to build partnerships and address transportation-related issues of concern to agencies and federally-recognized Indian tribes"

Native American Coordination Native American Coordination

What is consultation?

The Section 106 regulations define consultation as the "process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process" (36 CFR Part 800 Section 800.16(f)).

When is consultation required?

Consultation is required during all phases of the Section 106 process. It is important to consult with the federally recognized tribes:

  • prior to initiating federally funded projects on Indian land.
  • when an undertaking may affect properties of historic or cultural value to an Indian tribe on non-Indian lands.
  • whenever and wherever tribes attach significance to places on federal land or within federally funded or licensed projects.
  • if a proposed undertaking may affect a sacred site or ancestral site that is eligible for listing on the NRHP.

Who is involved with consultation?

The Department, the Federal Highway Administration, and six federally recognized Indian tribes affiliated with Florida are currently the key participants in consultation. The six tribes include:

The National Historic Preservation Act defines "Indian tribe as an Indian tribe, band, nation, or other organized group or community..., which is recognized as eligible for the special programs and services provided by the United States because of their status as Indian" (36 CFR Part 800 Section 800.16(m)).

Who is ultimately responsible for consultation?

It is the responsibility of the FHWA to make a reasonable and good faith effort to identify the appropriate tribes to be consulted. However, the Department acts as the agent of FHWA in enacting transportation programs for the state. Consequently, the Department typically assists the FHWA by initiating consultation on their behalf. The ultimate decision-making authority rests with FHWA.

What is a Tribal Historic Preservation Officer (THPO)?

A Tribal Historic Preservation Officer (THPO) is formally designated as such by the National Park Service (NPS) when certain criteria are met. These criteria are outlined in Section 101(d)(2) of the National Historic Preservation Act. A THPO certified by the NPS formally assumes the responsibilities of the State Historic Preservation Officer (SHPO) for purposes of Section 106 compliance on their tribal lands and will be consulted in lieu of the SHPO for undertakings occurring on, or affecting historic properties on, tribal lands.

Before a THPO may assume the functions of the SHPO, the National Historic Preservation Act requires Tribes to submit a formal plan to the NPS describing how the proposed THPO functions will be carried out. Of the six federally recognized tribes currently involved in FDOT consultation, only one tribe, the Poarch Band of Creek Indians, has a formally recognized THPO. The Seminole Tribe of Florida has a tribally appointed Historic Preservation Officer and is in the process of acquiring the formal designation. For additional information, see www.nathpo.org

For tribes without a NPS certified THPO, as defined in the regulation, the Federal agency must consult with a designated representative of the tribe in addition to the SHPO during review of projects occurring on, or affecting historic properties on, their tribal lands. Federal agencies must also consult with Indian tribes that attach religious and cultural significance to historic properties, regardless of their location.

What is the role of the Bureau of Indian Affairs (BIA) in Native American consultation?

Native American consultation takes place between the FHWA, FDOT and federally recognized tribes. The BIA recognizes the sovereignty of Indian governments and is involved in the Section 106 process as a consulting party only when a project involves BIA funding, a BIA road, or Indian land. For all other projects, the BIA is not involved in the Section 106 process.

Please contact either the FDOT (Jason Watts: 850-414-4316) or
FHWA Native American coordinator (Buddy Cunill: 850-553-2224) with any questions.

Native American Coordination Information