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Consultation Process Pursuant to E.O. 13175: Consultation and Coordination with Indian Tribal Governments

ONHIR TRIBAL CONSULTATION DOCUMENT - APRIL 2021

BACKGROUND AND HISTORY OF ONHIR’S TRIBAL CONSULTATION

The Office of Navajo and Hopi Indian Relocation (ONHIR), a small independent federal agency, carries on meaningful dialogues with Tribal/Native American entities as a regular part of daily agency business. At present we have 19 (“FTE”) staff members, twelve of whom are enrolled members of the Navajo Nation—all of whom are bilingual in English and Navajo.

The COVID-19 Pandemic has affected this process, as it has so much of American life. While previously many of the dialogues and discussions were in-person, given the constraints imposed by the Pandemic, many of the dialogues and discussions have had to use a different format—teleconferences and Zoom meetings or exchanges of e-mails (including documents attached to e-mails), texts and correspondence.

Several times a month, members of our workforce meet with various Tribal entities on aspects of our program. Most of these meetings are with local (Navajo Chapter) groups. We also, as necessary, meet with units of the central governments of the Navajo Nation and Hopi Tribe.

Part of our respect for Tribal governments is how we look at the consultation process: We are always available to consult on policy and programs, but we understand that Tribal governments have many important items to deal with (particularly in these difficult Pandemic times) and the frequency and subject matters of areas in which a Tribal government may wish to engage with ONHIR differ over time and differ as well based on the leadership style of the Tribal officials involved.

Doing our work over the past 44 years, we have formed relationships with Navajo and Hopi Tribal groups, and while we do not always agree, we have come to respect each other and thus generally find that it is easy and normal to consult and collaborate on a regular basis.

RELOCATION OF NAVAJOS AND HOPIS

Our agency’s primary task is to relocate Navajo and Hopi Tribal members who were living on land that was awarded to the other Tribe pursuant to PL 93-531 and its associated changes over time: The Amendments Acts of 1980, PL 96-305, 1988, PL 100-666, and 1991, PL 102-180. (See: [former] 25 U.S.C. § 640d) These public laws were enacted to achieve a final settlement of the long-standing dispute between the Navajo Nation and the Hopi Tribe.

While we deal with various Tribal entities regularly, our relationship with individual Navajo and Hopi Relocatees and their families is primarily an “Agency to Relocatee” or “Agency to “Relocatee and her/his family” one.

In resettling these families, we interact with various Tribal entities very frequently. Our job is to decide who is eligible for benefits, then build or buy them a Relocation Home. We consult with the relocatee families from the beginning to the end of the process. We provide pre-move counseling to inform the families of the options available in the selection of a home, to evaluate their economic status in determining where a relocation is most likely to be successful (given anticipated post-move living expenses), and to coordinate any other federal or state agency assistance activities that may be available and necessary.

We provide a full range of real estate acquisition activities, including new construction contracting and inspection, acquisition of new and resale dwellings, and monitoring of any necessary warranty or housing repair programs. We have a post-move program that counsels these Relocatees on basic maintenance of their home as well as the warranty that comes with each newly built home.

We work diligently to ensure that relocatee dwellings meet all applicable decent, safe, and sanitary standards and the International Building codes. Because our agency is very small, we have had to contract out some of our work—and a number of those contracts went to Tribal entities and Tribal members. To give you examples of our relationships with the Navajo Nation in particular (all the certified Hopi applicants living on Navajo land have already been relocated), the following are some of the basic programs where we collaborate:

NAVAJO COLLABORATIVE AND CONSULTATIVE ACTIVITIES

  1. In our Eligibility department, we meet with the Navajo Hopi Legal Services Program. This arm of the Navajo Nation Department of Justice and its contract attorneys interact with our agency by handling individual appeals of applicants who have been initially denied benefits under our program both in the Agency administrative appeal process and in Administrative Procedure Act Appeals in the Federal Courts.

  2. Our agency is responsible for having archaeological surveys of the homesites chosen by our certified clients on the Navajo Nation performed. If these clients are not moving to a subdivision in the Navajo Nation that has already had all the required archaeological studies performed, we contract with the Navajo Nation Archaeology Department to have these studies performed.

  3. The legal survey of the homesite lease area is performed by a Navajo contractor. The completed lease application, which includes the archaeological clearance, the legal survey plat, and NEPA clearances, is put together by our office and sent to the Navajo Nation for approval. Our Housing Specialist regularly communicates with the Navajo Nation.

  4. When all these studies and surveys are completed, and the Navajo Nation has issued a homesite lease for the area selected, we then utilize the Navajo Tribal Utility Authority (NTUA) to bring water and electricity to the site, and eventually connect these utilities to the home that is built. We have collaborated with NTUA and the Indian Health Service (IHS) to bring power and water to these areas by sharing the costs of utility projects with these two agencies. Most of the homes built are in remote areas (if they are not in a subdivision), so the costs of utilities are significant, and the collaboration time is extensive. As the homes are being built, our Housing Specialist has to coordinate bringing these utilities to the new home, thus our employees are meeting with NTUA and IHS on a regular basis.

  5. The Navajo—Hopi Settlement Act, as amended, gave the Navajo Nation the authority to acquire 400,000 acres as Navajo Trust Lands. Initially for a three-year period land selections were made by the Navajo Nation. After that three-year period, the authority to acquire the remaining acreage in Trust passed to ONHIR. Administrative and planning authority for the 400,000 acres was always vested in ONHIR.

  6. Most of the 400,000 acres was used to create the “New Lands” portion of the Navajo Nation. There remains about 12,000 acres to be selected and taken into Trust from the original 400,000 acres and in 2019 the Navajo Nation was granted the authority to deselect certain New Mexico lands and make a new selection. Thus, we communicate regularly with the Navajo Hopi Land Commission and its administrative staff. (This Commission represents the Navajo Nation on Trust land acquisition matters related to the Navajo—Hopi Settlement Act as well as other matters concerning Relocation.)

  7. A ranger from the Navajo Nation Resource Enforcement Department is based out of one of our offices on the New Lands, and our employees meet with him regularly.

  8. Maintenance of roads and utility infrastructure on the New Lands is the responsibility of the appropriate Federal or Tribal entities. (BIA Roads, or Navajo Tribal Utility Authority for water and power) The ONHIR provides maintenance for all New Lands buildings used by us, and ONHIR lease agreements for buildings owned by us but used by health provider agencies and the New Lands local community contain language specifying that the lessee is responsible for maintenance.

  9. We have a contract in place with the Navajo Engineering and Construction Authority (NECA) for repair of New Lands waterlines for situations in which the Navajo Tribal Utility Authority would not make needed repairs.

  10. We have reached agreement with the Navajo Department of Public Safety (NDPS) to open a police substation on the New Lands and are working with the Navajo Nation on having other parts of the NDPS locate facilities on the New Lands.

  11. As families started moving to the New Lands portion of the Navajo Nation, the need for a strong local government manifested itself. We helped establish the Nahata Dziil Commission Governance (NDCG) a Navajo Chapter coextensive with the New Lands. (Chapters are the local governing bodies on the Navajo Nation.) Over the years we have given NDCG grants to fund part of their operations to help them meet their responsibilities. In the past, we have also entered into contracts with NDCG to work with us to perform some of the duties of our agency and create employment opportunities in the New Lands. The largest of these contracts was to assist with fence building on the New Lands. Most of the New Lands have been developed for families who graze animals, so fence building and repair are very important activities. Again, our employees in the New Lands area meet with the NDCG regularly.

HOPI COLLABORATIVE AND CONSULTATIVE ACTIVITIES

Our Executive Director meets with the leadership of the Navajo Nation and Hopi Tribe when there are issues to discuss which affect either one or both of the Indian Nations and our agency. These discussions are collaborative and produce many opportunities to work together. Our agency’s activities with the Hopi Tribe have included:

  1. Our agency gave the Hopi Tribe grants for property dismantlement for many years. As Navajo families moved off the Hopi lands, if they left their corrals, whatever else was left of their homes, and any out-buildings behind these had to be removed. The Hopis then went onto these sites, salvaged what was possible, and discarded the rest. As a family was certified to move, our archaeologist would notify the Hopi Tribe of the physical location of their former property, which started the dismantlement process. Our agency collaborated with both the contracting office of the Hopi Tribe and the Office of Hopi Lands team that did the actual work on a regular basis.

  2. Our agency gave a grant to the Yawehloo Pahki (Spider Mound) community of the Hopi reservation. Since most of the families in this community at the time were Relocatees and they needed to have a meeting area, we gave them a grant for a community building. The design and construction of this building required one of our contracting staff to spend many hours in consultation and collaboration with this community. With his excellent relationships with these people, he was able to help them complete a much-needed project.

  3. Our Executive Director meets or offers to meet with the leadership of the Hopi Tribe as needed to discuss any problems or new actions to be considered.

TRANSITION DISCUSSIONS

For years, the direction from the Administration and Congress is that ONHIR should prepare for either closure or else transition to another part of the federal government. Our efforts and actions have included extensive meetings with the Navajo Nation and components of the Navajo Nation as well as representatives of the Department of the Interior. We intend to continue such meetings and discussions. We would be glad to have comparable meetings with the Hopi leadership.

RECORDS AND DOCUMENT REQUESTS

We have also responded to frequent requests for ONHIR records and information from both Tribal entities as well as from individual members of the Tribes. We intend to continue being responsive to such requests.

THE NATION-TO-NATION RELATIONSHIP

As federal law and policy require, any proposed major actions by ONHIR require formal consultation with the public—including the Tribes. We have published such proposals in the Federal Register in the past and would do so in the future when appropriate.

We remain committed to respecting Tribal sovereignty and the Nation-to-Nation relationship in the consultation process.

HOW WE CONSULT

As we plan for transition of remaining ONHIR functions to other entities of the federal government, our plan is to continue collaborating with both these Native American governments on a regular basis, at all levels of their governments.

The Executive Order Designated Agency official with the responsibility to carry out this Executive Order is Christopher J. Bavasi, Executive Director, ONHIR. He can be contacted at (928) 779-2721. Agency attorney Lawrence A. Ruzow serves as Mr. Bavasi’s alternative for certain consultation matters.

They are the ONHIR agency officials who coordinate implementation of this plan and preparation of required progress reports.

To insure we screen planned agency actions to determine whether Tribal consultation is appropriate and for initiating consultation within the agency when it is, we discuss such actions at our regular ONHIR Managers’ Meetings which take place about twice a month.

We have identified the Navajo Nation and the Hopi Tribe as the Tribes to consult with.

We have asked these Tribes to let us know which persons or offices within their Tribal Government should be our point of contact and what is the best way to contact such persons. We update that information when new information is provided to us.

The appropriate ONHIR official/staff member for a given consultation depends on the subject matter of the consultation. Following such consultation, if the ONHIR Executive Director did not directly participate in the consultation, the Executive Director is provided a summary of the consultation.

Subject to budgetary constraints and other obligations of agency staff (and the Covid-19 Pandemic), the method of consultation seeks to utilize the Tribally preferred method and considers the accessibility and availability of Tribal resources to participate in consultation.

ONHIR utilizes the Tribally preferred method of notification of consultation events and provides as much advance notification as we can. This process is subject to revision as needed with Tribal consultation being part of the revision process.

THE HISTORY OF THIS DOCUMENT

We sent our draft Consultation Policy to Navajo and Hopi Tribal Leaders on March 11th and sent a follow-up e-mail on March 25th and then sent the OMB “Key Concepts” on March 29th. We did get an acknowledgment from the Chair of the Navajo–Nation’s Navajo–Hopi Land Commission and from the Navajo Nation’s NDCG (New Lands) Chapter. (This Commission represents the Navajo Nation on matters related to the Navajo—Hopi Settlement Act as well as other matters concerning Relocation.) While we have not yet received any substantive comments on the draft consultation document, given the OMB deadline, we are submitting ONHIR’s Tribal Consultation Implementation Plan at this time. We are certainly willing to modify it in the future to take into account Tribal comments received later.

04/26/2021