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Tribal Consultation

Overview

This section provides an overview of tribal consultation issues as they relate to transportation project and program delivery.

This overview contains the following sections:

 

Background

A variety of federal laws and regulations and other mandates such as presidential executive orders require consultation with federally recognized Indian tribes as part of planning for federally funded or authorized projects.  

Tribes are defined as a “tribe, band, nation, or other organized group or community of Indians … which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.” 25 U.S.C. 3001, § 2(7)

As sovereign “domestic dependent nations,” Indian tribes have a unique legal relationship with the United States government through its agencies.  This unique legal status requires special, government-to-government consultation as part of project development, and the cultural differences between indigenous cultures and western society need to be recognized and taken into account in the consultation process.

Information related to policies, protocols, guidance and best practices on tribal consultation, however, is scattered among many different sources and is often not readily available. This web page provides an overview of tribal consultation as well as links to documents and websites that address key aspects of tribal consultation. 

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What is 'consultation' and why is tribal consultation required?

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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Which tribes should be consulted?

 All federally recognized tribes that ascribe religious and cultural significance to historic properties that may be affected by a project should be consulted.  Information about identifying appropriate tribes for consultation is available from state historic preservation officers (SHPOs), state Indian affairs agencies, federal agencies, web sites, and other sources.  See Organizations and Training section for tribal directories and databases. 

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How is consultation different on tribal land versus off tribal land?

For Section 106 undertakings on tribal land, it is important that agencies determine whether the tribe has a Tribal Historic Preservation Officer (THPO) who has been approved by the National Park Service to assume the role of the SHPO.  In that case, the agency consults with the THPO in lieu of the SHPO.  If there is no THPO, the agency consults with the tribe’s designated representative and the SHPO on an equal basis. On tribal lands, the agency must request tribal concurrence with determinations of eligibility and the tribe is a signatory to any Section 106 agreement documents.

Off tribal lands, there is no difference in consultation procedures for tribes with NPS-approved THPOs and those without THPOs.  The agency has a responsibility to consult all federally recognized tribes that ascribe religious and cultural significance to properties that may be affected by an undertaking.  The agency may invite the tribes to sign or concur with any Section 106 agreement documents that result from the undertaking.

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What about consultation with non-federally recognized tribes?

Federal agencies are not required to consult with non-federally recognized Indian tribes, unless the tribe has identified itself to the federal agency as having a concern about effects on historic properties that may result from an undertaking.  In such cases, the federal agency may choose to invite the non-federally recognized tribe to participate in the Section 106 consultation process as a consulting party.  It is important for agencies to work with all kinds of traditional communities that have concerns about effects on traditional cultural places and other kinds of historic properties, but there is no government-to-government relationship with non-federally recognized tribes. Non-federally recognized tribes may request consulting party status on the basis of their concern about effects to historic properties that may result from an undertaking.

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How can concerns about confidentiality be addressed?

Because many Indian tribes and Native Hawaiian organizations believe that divulging locational information and other information about traditional cultural properties will compromise the property’s existence and sacred value, confidentiality of such information is of great concern. Information regarding the location of sites sensitive for religious and cultural significance or archeology should routinely be withheld from public disclosure.  The provisions of Section 304 of the National Historic Preservation Act and 36 CFR 800 allow for that information to be withheld even in the event of a Freedom of Information Act challenge.

Confidentiality concerns also can be addressed in Section 106 agreement document negotiated between tribes and Federal agencies as provided in 36 CFR 800.2(c)(2)(ii)(E).

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What is the role of the state DOT in tribal consultation?

The DOT is a consulting party in the Section 106 process and a state agency.  Tribal consultation is a federal-agency-to-tribal-government relationship.  Tribal consultation for a project should be initiated by the federal agency, and at key points in the consultation process (e.g., requests for concurrence with findings of eligibility, formal notification of the agency’s finding of effect) the consultations should be carried out by the federal agency.  Day-to-day discussions, field visits, and other work with the tribes can be carried out by the DOT, under delegation from the federal agency, if the tribes agree.

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