Office of Environmental Management

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

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)

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.

The Department and the Tribal Historic Preservation Officers and other cultural and preservation officers of the six federally recognized Indian Tribes affiliated with Florida are currently the key participants in consultation. The six Tribes include:

• The Miccosukee Tribe of Indians of Florida
• The Mississippi Band of Choctaw Indians
• The Muscogee Creek Indians
• The Poarch Band of Creek Indians
• The Seminole Nation of Oklahoma
• The Seminole Tribe of Florida

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 Indians." 36 CFR Part 800 Section 800.16(m)

It is the responsibility of the lead federal agency to make a reasonable and good faith effort to identify the appropriate Tribes to be consulted. In Florida, FDOT has assumed the role as lead federal agency for compliance with the National Environmental Policy Act pursuant to 23 USC Section 327 and in accordance with the implementing Memorandum of Understanding executed on December 14, 2016.

Under NEPA Assignment, FDOT has the responsibility to conduct the day to day consultations and communications with Tribes affiliated with Florida for the purposes of compliance with Section 106. Notwithstanding NEPA Assignment, government to government consultation between Tribes and federal agencies remains the responsibility of FHWA as set forth in 23 C.F.R. Section 773.105(b)(4). In the event of a Tribe requesting government to government consultation with FHWA, FDOT's Office of Environmental Management (OEM) will inform FHWA or other appropriate federal agencies of the request

Several of the Tribes have assumed the role of the SHPO pursuant to Section 101(d)(2) of the NHPA. When a Native American Tribe has assumed this role, the THPO serves as the SHPO for projects occurring on its Tribal lands. If a Tribe has not assumed the responsibilities of the SHPO on their Tribal lands, then the Tribal coordinator or official responsible for the treatment of historic and cultural properties on the Tribal land must be consulted as well as the SHPO.

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.