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Federal National Historic Preservation Act Section 106 -Tribal Consultation (11-FD-b)

This section illustrates the tribal consultation process required for Section 106 of the National Historic Preservation Act.

National Historic Preservation Act Section 106 -Tribal Consultation Process

11-FD-b.1 - Will Environmental Review Affect Any Tribe?

The National Environmental Policy Act (NEPA) calls for the federal government to invite the participation of any affected Native American tribe in the environmental review process.

See GSA Guidance on Tribal Consultation.

11-FD-b.2 - Invite Tribal Participation in Review Process

Where proposed actions may affect tribal lands or resources (e.g., treaty-protected resources (2), cultural resources and/or sacred sites (3)) EPA will request that the affected Indian Tribe (4) seek to participate as a cooperating agency (40 CFR 1508.5). Where differences occur regarding the preferred alternative or mitigation measures that will affect tribal lands or resources, the affected Indian Tribe may request that a dispute resolution process be initiated to resolve the conflict between the tribe and the Agency.

See Environmental Justice Guidance for NEPA.

11-FD-b.3 - Will Development Affect Any Historic Tribal Resources?

The National Historic Preservation Act (NHPA) enhanced Native American tribal roles in historic preservation and created the Tribal Historic Preservation Officer (THPO) program.

When an undertaking occurs on tribal land, the federal agency must notify appropriate Indian tribes of the undertaking and give those tribal groups the opportunity to consult, should they wish to do so.

See GSA Guidance on Tribal Consultation

11-FD-b.4 - Consult with THPO

Tribal consultation is required in all steps of the NHPA Section 106 process when a federal agency undertaking may affect historic properties that are either (1) located on tribal lands, or (2) when any Indian tribe or Native Hawaiian organization attaches religious or cultural significance to the historic property, regardless of the property’s location.

If a tribe has assumed State Historic Preservation Officer (SHPO) responsibilities for tribal lands by designating a Tribal Historic Preservation Officer (THPO), as provided for in NHPA Section 101(d)(2), then the federal agency shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties on tribal lands. (For more information about the THPO program, see the Advisory Council on Historic Preservation’s National Association of Tribal Historic Preservation Officers.)

If a tribe has not assumed SHPO responsibilities by designating a THPO as provided for in NHPA Section 101(d)(2), then the federal agency shall consult with official representatives of the tribe as well as with the SHPO. Such Indian tribes have the same rights of consultation and concurrence that tribes with THPOs have, except that consultations about undertakings on tribal land shall be in addition to and on the same basis as consultation with the SHPO.

See GSA Guidance on Tribal Consultation.

11-FD-b.5 - Conduct Ethnographic Study

Ethnographic studies are a part of the overall cultural resource analyses necessary to satisfy federal and state environmental requirements.

11-FD-b.6 - Will Development Affect Any Sacred/Religious Sites?

The American Indian Religious Freedom Act (AIRFA) affirms a national policy to protect and preserve for Native Americans their inherent right of freedom to believe, express, and exercise the traditional religions of indigenous America, including protecting and preserving access to sacred sites.

See GSA Guidance on Tribal Consultation.

11-FD-b.7 - Accommodate Access and Use of Sites to Degree Practicable

"On and after August 11, 1978, it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites."

See American Indian Religious Freedom Act, Section 1.

11-FD-b.8 - Have Tribal Remains, Funerary Objects, Etc. Been Discovered?

See the Native American Graves Protection Act, Section 2, for detailed definitions of "burial site," "cultural items," etc.

11-FD-b.9 - Follow NAGPRA Repatriation Process

Ownership of Native American cultural items discovered on Federal or tribal lands is determined according to Section 3 of the Native American Graves Protection Act.

11-FD-b.10 - Will Archaeological Excavation Be Required?

The Archaeological Resources Protection Act requires federal agencies to consult with tribal authorities before permitting archaeological excavations on tribal lands. It also mandates the confidentially of information concerning the nature and location of archaeological resources, including tribal archaeological resources.

See GSA Guidance on Tribal Consultation.

11-FD-b.11 - Consult with Tribal Authorities Before Allowing Excavation

"The purpose of this Act is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979 [the date of the enactment of this Act]." Archaeological Resources Protection Act.

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