Consultation means: the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them. [36 CFR part 800.16(f)]
Tribal consultation is required by a number of federal laws and regulations and by Presidential orders.
The National Historic Preservation Act (NHPA) of 1966 (P.L. 89-665; 16 U.S.C. 470) requires that federal agencies be good stewards of historic properties under their control and take into consideration the effects of their actions on all affected historic properties, whether or not the properties are under their direct jurisdiction.
Section 101(d)(6)(B) requires that “a federal agency shall consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to properties” that may be affected by its Section 106 undertakings. Section 110(a)(2)(D) requires federal agencies to ensure that their “preservation-related activities are carried out in consultation with ... Indian tribes …” Regulations implementing Section 106 can be found at 36 C.F.R. 800 as amended August 2004 [PDF 150kb].
The American Indian Religious Freedom Act of 1978 (AIRFA) of 1978 (42 U.S.C. 1996) was the first federal policy statement on American Indian sacred places and religious practices. It is a joint resolution of Congress rather than an actual statute and does not specifically require tribal consultation. Because AIRFA focuses on access and practice and not on preservation of places, it has not proven to be effective in protecting sacred sites from impacts during Federal or federally assisted projects.
The Archaeological Resources Protection Act (ARPA) of 1979 (P.L. 96-95; 16 U.S.C. 470aa-47011) requires permits for excavation of archaeological sites on federal and tribal lands and establishes civil and criminal penalties for unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources on federal or tribal land. The law requires consultation prior to the issuance of ARPA permits for excavations on federal land, consent of the Indian tribe for excavations on tribal land, and consultation concerning the disposition of artifacts recovered from permitted excavations.
The regulations implementing ARPA can be found at 43 CFR 7 for Department of Interior agencies; 36 CFR 296 for Department of Agriculture agencies; and 32 CFR 229 for Department of Defense agencies.
Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 (P.L. 101-601; 25 U.S.C. 3001 et seq.) is not an historic preservation law as such, but it intersects with Section 106 because it pertains to the disposition of human remains and some cultural materials recovered during projects on federal and tribal lands. This law establishes a process through which Native American human remains, funerary objects, sacred objects, and items of cultural patrimony are to be repatriated to lineal descendants and culturally affiliated Indian tribes.
NAGPRA requires consultation about the disposition of human remains, funerary objects, sacred objects, and objects of cultural patrimony during intentional archaeological excavations and in cases of inadvertent discoveries on federal and tribal land. Consultation also is required when federally-funded museums prepare summaries and inventories of their holdings that are required by NAGPRA.
The regulation for NAGPRA can be found at Native American Graves Protection and Repatriation Act (NAGPRA) regulations, Final Rule 43 C.F.R. Part 10, December 1995 [PDF 246kb].
Executive Orders and Memoranda
E.O. 13007: Indian Sacred Sites [PDF 59kb] is similar in its provisions to AIRFA but incorporates the notion of access to and preservation of places as a key part of Native American religious practice. It encourages land-managing agencies to accommodate access to and ceremonial use of sacred sites and to avoid adversely affecting the physical integrity of such sites.
E.O. 13175: Consultation and Coordination with Indian Tribal Governments 11/16/2000 (FR 11/9/2000) [PDF 138kb] directs agencies to respect tribal self-government and sovereignty and to carry out timely and meaningful consultation when they are developing policies or regulations that may affect tribes. (This E.O. replaced E.O. 13084).
Executive Memorandum dated 9/23/2004: Government-to-Government Relations with Tribal Governments establishes a policy of government-to-government relations that fully respects tribal sovereignty, self-government, and self-determination.
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