Instruction to District and Field Offices to notify Indian Tribes regarding issuance of ARPA permits
In Reply Refer to:
8150/8160 (NV930) P
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Nevada State Office
P.O. Box 12000 (1340 Financial Blvd.)
Reno, Nevada 89520-0006
http://www.blm.gov/nv/st/en.html
October 26, 2010
EMS TRANSMISSION
Instruction Memorandum No. 2011-008
Expires: 9/30/2012
To: District Managers and Field Office Managers, Nevada
From: Ron Wenker State Director, Nevada
Subject: Instruction to District and Field Offices to notify Indian Tribes regarding issuance of ARPA permits
This instruction establishes guidance on notification to Indian tribes when authorizing excavation and/or removal of archaeological resources from public lands under the authority of either (1) a permit issued pursuant to the Archaeological Resources Protection Act (or ARPA, 16 U.S.C. 470aa-mm) and accompanying regulations 43 CFR 7 (Protection of Archaeological Resources), or (2) as a part of the official duties of persons conducted under direction of the BLM manager and associated with management of archaeological resources. Additional information, including definition of terms, is found in Attachment 1.
A. Background. The ARPA and its regulations require an approved permit for anyone proposing to excavate and/or remove archaeological resources from public lands administered by Bureau of Land Management (BLM) Nevada. No permit is required for persons carrying out activities associated with management of archaeological resources as part of their official agency duties under a BLM manager’s direction.
Prior to either issuance of a permit or authorization of official agency duties involving excavation or removal, BLM must determine if there could be harm to, or destruction of, any Indian tribal religious or cultural site on BLM-managed lands (defined in Attachment 1). If the BLM manager determines that such harm or destruction may occur, authorization for excavation and/or removal of archaeological resources from public lands must be preceded by notification to any tribe which may consider the site as having religious or cultural importance. Any identified tribes must be notified at least 30 days prior to a BLM authorization. In addition, excavation of human remains and associated cultural items under authority of the Native American Graves Protection and Repatriation Act must be done under requirements of ARPA.
B. Instruction. This instruction applies throughout BLM Nevada’s current Cultural Resources Inventory General Guidelines, Fourth Edition (Guidelines) and will be applied by district and field office managers as well as cultural resources specialists. This instruction will be followed where language in the Guidelines or in BLM Manual 8150 conflicts with this instruction.
1. Instructions When No Excavation or Removal is Proposed. Survey and Recordation permits issued by the BLM Nevada State Office under FLPMA do not authorize excavation or removal of archaeological resources from BLM lands. No BLM notification to Indian tribes is required if the appropriate BLM Manager (defined in Attachment 1) does not authorize excavation and/or removal (including no subsurface probing or surface collecting) of archaeological resources from public lands when approving a First Authorization Request (FAR) or otherwise authorizing non-excavation, non-removal survey and recordation activities.
2. Instructions When Excavation or Removal is Proposed. An archaeological resource is defined in the regulations (43 CFR 7.3(a) as material remains of human life or activities which are at least 100 years of age and are of archaeological interest. For purposes of this instruction, compliance is required when (a) involving known or likely material remains of ancestral Indian people, and (b) those remains can reasonably be presumed to be at least 100 years of age. A level of interest warranting excavation or removal is taken as de facto substantiation of “archaeological interest.” On lands managed by BLM Nevada, the definition of an archaeological resource extends to include items such as stone flakes (or debitage) of unknown age, non-diagnostic biface fragments and isolated flaked or ground stone tools, for example.
In addition, the BLM Manager should consider that excavation and/or removal at sites lacking an ancestral Indian component might still be proposed to occur in a site of religious or cultural importance to a tribe; BLM Managers should consider this possibility in determining the need for tribal notification prior to requested permit issuance.
a. Upon receipt, district and field office cultural resources specialists, in consultation with the appropriate BLM Manager, shall review a FAR to (1) determine whether excavation or removal of archaeological resources is proposed, (2) provide information needed for notification to tribes, if required, and (3) inform the permittee or authorized person as soon as possible whether excavation or removal of archaeological resources will be authorized by the BLM Manager.
Excavation and/or removal of archaeological resources may be authorized by the BLM Manager without notification to Indian tribes when the manager has determined in writing and in advance that authorization of a FAR will not result in harm to, or destruction of, any Indian tribal religious site on public lands; the BLM Manager must provide written documentation of that finding to the Program Lead (defined in Attachment 1) prior to permit issuance. One example might be based on the manager’s determination that the location of excavation and/or removal is a late nineteenth to early twentieth century mining site with no known historical or archaeological evidence or documented use by tribal persons meeting the criteria for a religious or cultural site stated above. Another example might be a determination based on previous tribal consultation which allows the BLM Manager to confidently conclude that the permitted or authorized activities would not hinder uses meeting the criteria for a religious or cultural site stated above. Other examples include: (a) attempts to identify tribes with aboriginal or historic ties to the area of investigation have been negative; (b) information has been withheld by an Indian tribe and the BLM Manager has informed the tribe in writing that the absence of information will preclude notification; (c) the tribes have already been consulted about the proposed archaeological work pursuant to Section 106 of the National Historic Preservation Act (NHPA), the National Environmental Policy Act or other laws sufficient to satisfy the notification requirement of 43 CFR 7.7 (BLM8150.13.A.2).
b. Limited Testing and/or Collection Permits and Excavation and/or Removal Permits. Existing direction in the Guidelines for issuance of permits or approval of an FAR for Limited Testing and/or Collection Permits and for Excavation and/or Removal Permits already requires prior notification of tribal officials or other designated officials consistent with this instruction. Notification procedures in this instruction shall be followed. A BLM district or field office manager must provide written notification to the Program Lead indicating that terms of the notification process have been met and stating whether the State Office should proceed with permit issuance; this notice shall document the notification process described in F(1), below.
Only those persons named in a permit as either a Principal Investigator or a Crew Chief are subject to be authorized to collect artifacts or to instruct persons under their direct supervision to excavate or to collect artifacts.
C. Tribal Notification Procedures. Notification must be sent to the chief executive officer or other designated official of the Indian tribe. Notification to tribes must be made at least 30 days prior to the authorization for probing, collection, limited testing, or excavation to establish whether an Indian tribal religious or cultural site of importance is present. Upon request from a tribe during the 30-day period, the BLM Manager may meet with official representatives of any tribe or group to discuss their interests, including ways to avoid or mitigate potential harm or destruction. This determination process must be documented in writing, subject to provisions for confidentiality relating to public disclosure of locations of archaeological resources and/or properties eligible for the National Register of Historic Places.
(1) District and field offices must document the tribal notification process. This will include (a) the description of the proposed or requested type of permit or permit activity provided to tribes, (b) a list of chief executive tribal officers or other designated tribal officials receiving the notification, (c) the date(s) when notices were provided, (d) the dates of any related meetings, and (e) mitigation measures adopted to avoid or mitigate potential harm or destruction to Indian tribal religious or cultural sites. This information shall be filed with any approved FAR relating to specific projects. For Limited Testing and/or Collection Permits and Excavation and/or Removal Permits, this information must be conveyed to the Program Lead prior to permit issuance by the Nevada State Office, to document notification efforts by the district or field office.
(2) District and field managers will:
(a) seek to identify Indian tribes having aboriginal or historic ties to BLM lands under the manager’s jurisdiction, and
(b) seek information from the chief executive officer or other designated official of Indian tribes about the location and nature of specific sites of religious or cultural importance in order to have that information on file for land management purposes. The manager may also contact Native American groups that are not Indian tribes to obtain this same kind of information for land management purposes.
(3) If the BLM Manager determines that a limited collection and/or testing permit, or an excavation and/or removal permit and any fieldwork authorization must be issued immediately because of an imminent threat of loss or destruction of an archaeological resource, the BLM Manager must notify the Nevada State Office and appropriate tribe(s). The Nevada State Office may also determine that immediate permit issuance is necessary and will notify and coordinate with the appropriate BLM Nevada Manager(s).
D. Curation of Collections. In instances where removal of archaeological resources is authorized, the existing requirement remains that all collected materials and samples will be curated at the permittee’s expense in the facility identified and approved as part of the permittee’s application or in another repository meeting Federal standards and approved in advance in writing by the Program Lead.
E. Relationship to Other Laws. Application of this policy cannot be assumed to fulfill requirements in other laws involving consultation or notification of tribes regarding properties of religious and cultural importance or “traditional cultural properties” as might be considered under the National Historic Preservation Act, nor does it necessarily meet any such requirements under the Native American Graves Protection and Repatriation Act, the Sacred Sites Executive Order 13007, or other laws, regulations or directives. Each of those laws shall be addressed separately according to guidance in BLM Manual 8120 and its associated handbook H-8120-1 to ensure BLM’s compliance with their terms.
F. Questions
Time Frame: This IM is effective immediately. These new procedures are intended to ensure that notification to tribes regarding applications for excavation or removal of archaeological resources are handled in a timely, coordinated, efficient, and consistent manner.
Manual/Handbook Sections Affected: Portions of BLM Nevada’s Cultural Resource Inventory General Guidelines (4th edition, revised) are replaced by instructions in this IM, particularly (but not necessarily limited to): II.D (Native American Consultation), IV.D.3 (Collection), and VI (Cultural Resource Use Permits).
Questions should be directed to Tom Burke, Cultural Resources Program Lead, Nevada State Office, at 775/861-6415.
Signed By:
Ron Wenker
State Director
Authenticated By:
Ellyn Darrah
Administrative Assistant
Attachment
1-BLM Nevada Cultural Resources Use Permits Authorization Process