Threats to Meaningful Consultation in Indian Country Signal a New Termination Era

Threats to Meaningful Consultation in Indian Country Signal a New Termination Era

By Nicky Kay Michael, PhD

A political storm is threatening Indian Country similar to what US tribal nations faced in the 1950s termination era.  According to Scott Sypolt, Akerman Law, terminating the federal relationship of tribal nations did not begin with one major shift in political action.  Instead, termination was a series of reduced acts and exclusions which enabled a full onslaught called termination.  The US terminated their Trust relationship to 109 tribal nations from 1945-1960.  The federal responsibility and jurisdiction was turned over to state governments. Consequently, approximately 1,500,000 acres of trust land was removed from protected status and close to 12,000 Native Americans lost tribal affiliation. Much land was sold to non-Indians as a result.  While those are the official statistics, in no uncertain terms, termination devastated all of Indian Country.  The simple threat and passage of an act left every tribal nation in jeopardy.

Similarly, Indian Country faces that same possibility with the Federal Communications Commission (FCC) rolling back the Tribal Historic Preservation, Section 106 processes, also understood as “tribal consultation.”  Essentially, this is a required process to consult with tribal nations regarding construction which may impact sacred or historical sites, or tribal remains—our ancestors bones.  The most recent threats to recognizing tribal consultation processes have been in the form of nullifying regulations of companies to consult with tribal nations before construction begins.  This may seem an insignificant to them or the outside world, but to Indigenous peoples, the enforcement of those regulations guard what little we have left of those remains. 

The consultation process can be elusive.  Some in the federal government or in corporate American deemed that a letter notifying the tribe in question would suffice as consultation.  Over the years, the term consultation has been codified to mean something more significant than a mere notification or letter; it means a relationship.  In any relationship, emphasis on significant input from both or all parties as to a mutually agreed outcome is essential.

Most of Indian Country recognizes how the lack of consultation impacts tribes, particularly relating to the Standing Rock Sioux and the Dakota Access Pipeline (DAPL).  While environmental laws were blatantly ignored, Section 106 Tribal Historic Preservation consultation requirements were also in question.  Standing Rock Sioux as well as a number of other Lakota Nations were included in meetings with the US Army Corps of Engineers and the Dakota Access Pipeline representatives.  For two years previous to the pipeline construction, Lakota Tribal Historic Preservation Officers and tribal leaders profess that they resisted and expressly rejected the pipeline.  Yet, industry declared that their mere presence in any given meeting was deemed enough to justify the consultation requirement.  Despite these challenges, tribal nations throughout the country have worked diligently and consistently to assert that the full meaning of consultation is recognized. Much is at stake in this assertion.  After all, any construction on sacred sites and ancestral remains are vulnerable.

At the very core of the 1970s Indian Self-Determination and Education Assistance Act was the promise which tribal nations would be included in the decision-making process of federal political acts.  After four-hundred years of failures, the federal government finally realized that they botched their treaty relationship to tribes.  While, Self-Determination was a conservative movement, the inclusion and empowerment of tribal peoples was the core value of the legislation.  Consultation is critical to inform and implement laws meant to benefit the very people the laws are about.  Congress realized that was the failure of so much of previous Indian policy, which resulted in most of the worst statistics for health, poverty, and any other socio-economic hardship in the US.

Today, we have the benefit of hindsight and an army of Indian Law attorneys and educated tribal leaders who will put up a legal fight avoiding another termination era.  However, with the major emphasis on deregulation in the Trump administration, Indian Country has much to do to maintain the hard fought federal recognition of their sovereignty.  Yet, we must also recognize that the infringements on consultation of tribal governments did not begin with the current administration.  Much of the legal action and FCC hearings began under Obama.

According to the FCC website: Whenever Congress enacts a law affecting telecommunications, the FCC starts a proceeding to create the rules and policies required by the new law. The commission also may start a proceeding when an outside party files a petition seeking a new law or change in existing rules.

In mid-2016, the Delaware Tribe of Indians received a call from the FCC inquiring about its fee structure.  This was the first of many indications that Section 106 tribal consultation was in trouble and they were calling many nations to ascertain their fees.  Apparently, behind the scenes, the FCC received a number of complaints about the program.  Complainants were cell tower companies navigating through the requirements of consultation with each and every tribal nation construction may impact.  Each of the 500 plus tribe has fees set by their own government and THPO program and there could be a few or as many as fifteen tribes in any given location.  Under the previous regulations, cell companies then waited thirty days for a reply from each party.  Some nations did not respond in a timely matter.  From the company’s standpoint, the tedious nature of the inquiries and payments were an impediment and they made this stance clear to the FCC.  From the tribes’ purview, they had to be able to provide this service.  For-Profit companies are accustomed to efficiency and have the funding to pursue their commercial activities while tribes often have scant resources and are in the process of building their offices to meet the demand of the market.  The fees were assisting tribes to build their data bases, offices, and pay competent staff to research the inquiries.  Cell companies could easily hire an archaeological firm and pay much more than they paid to most tribal historic preservation offices.  The FCC voted along party lines, 3-2, March 22 to exempting small towers from consultation requirements and replaces the existing 60-day review process with 15 calendar days and companies are not required to pay upfront fees

July 3, 2018, Tribal Historic Preservation Officers across the Indian Country, experienced the date for which they would no longer receive required fees associated with making a determination regarding whether construction of a cell tower would impact any of their current or past historical areas.  THPO often depend on these fees to make determination because like states or any other government, they have databases of historical areas and burial sites, and archaeological evidence to make determinations and a host of other programmatic needs.  Like any specialty service, an organization needs a trade-off between offering the service and the cost for said service.  Tribal nations utilize the fees to build up their THPO programs to accommodate the ability to provide an accurate answer to an inquiry.  Delaware Nation in Anadarko, Oklahoma is one of the most successful programs that I have observed to do this.  Employing a full staff of Culture and Historic Preservation is critical to providing this service.  Delaware Nation also has one of the most expansive areas to cover considering the six to seven separate removals and expansive historical area the Delaware traveled before their final relocation in Indian Territory.  Yet, Delaware Nation recently attempted to consult with the FCC at a meeting in Broken Arrow.  To start off the consultation, the FCC was late, they had no plan to address the questions, and during the entire meeting the FCC was texting and essentially ignoring the tribal leaders, according to Sypolt.  That is not meaningful consultation.  If they were to meet with any state government like this, the FCC would be called on the carpet, but they get away with it towards tribal nation governments.

When the new regulations were posted in the Federal Register, Akerman Law filed suit within the ten days as required by law to protest.   Akerman Law was the first of several firms to file suit.  Sypolt explained that their case was accepted due to the emphasis on the fact that the consultation process is endemic in Indian law.  The fees paid to tribes for their expertise is important, however, “meaningful consultation,” is critical, per the US Constitution and reinforced through executive orders and treaties.  Sypolt plans to argue these basic law premises regarding Indian Law.  Their successful record results from appealing to the US Constitution, Executive Orders exclusive to Tribes, and the morality of maintaining promises of US treaties with the Indian Tribes.  They also filed in a carefully researched DC Circuit Court of Appeals.  Their judges are fair and open to tribal perspectives.

As a result of their timeliness and proactive planning, Akerman has had several victories in the courts.  First, the FCC filed for an Abeyance, which would have stalled the case for up to three years.  The Abeyance was denied.  Also important to note, many individual tribal nations filed within the time period and were denied.  That is the benefit of the Akerman suit.  At present, 19 nations joined together with Akerman.  Additional nations may also join by Amicus Brief.  The more nations who join will assist in demonstrating the unity among nations to the judges.  Tribal representatives in Oklahoma are fighting back on many fronts.  Sheila Bird, United Keetoowah Band THPO, organized the first of several ongoing meetings.  The Otoe-Missouria Tribe is holding the next gathering on August 30.  Delaware Nation President Deborah Dotson sums up the tribal sentiment, “we are stronger together.” 

If you have questions about adding your nation to the suit, Scott Sypolt email is: scott.sypolt@akerman.com.