The following information provides guidance to selected parties who need to consult with American Indian tribes. While the Texas Historical Commission provides these guidelines to help facilitate consultations, responsibility for consultation rests on federal, state, and local government agencies, as well as other organizations with consultation requirements.
Tips for Tribal Consultation
- Talk early and often. Failure to consult with the appropriate parties may result in significant project delays.
- Get informed and stay informed. Brief yourself or your representatives on tribal histories and contemporary issues. Many tribes provide brief histories on their websites.
- Document your efforts from the planning stages through final meetings.
- Consider appointing a special liaison or point of contact if you will regularly consult with Indian tribes. This will help streamline the process for all consulting parties.
- Recognize, respect, and encourage cultural differences. Native American concepts of how and when meetings should occur may differ from those in mainstream business practice.
- Be honest. Don’t make promises that you or your agency/sponsor cannot keep.
- Allow adequate time for participant groups to consider the project and its implications. Consultation is a process. It is not a single meeting.
- Pay attention to word choices. For example, the term “prehistoric” may be offensive to native peoples as it implies that tribes had no “history” prior to contact with Europeans.
- Share a meal or plan a social outing. Don’t restrict your time to just business; engage and learn from native participants to get a better understanding of their perceptions of the matters at hand.
- Consider bringing gifts. Check with your agency/sponsor and applicable state and federal laws to determine what is appropriate.
- Ask permission from tribal representatives if you plan to take photographs.
- Be aware of tribal political changes. Tribal governments, like our national and state government, have periodic leadership changes.
Brief History of Tribal Sovereignty
This brief history provides basic background information on the regulatory interactions between American Indian tribes and Euro-American settlers. It is not exhaustive.
- Colonial Era (1533–1775): During this period, treaty-making was the primary form of negotiation with Indian tribes, who were afforded a similar status as colonial governments. Treaties sought to end hostilities, establish the boundaries of Indian lands, and regulate trade.
- U.S. Federal Era (1776–1823): Treaty-making continued in this period. Laws of the new nation regulated interaction between Indian and non-Indian peoples, especially concerning trade and land transactions (e.g., Trade and Non-Intercourse Act of 1790). Article I, Section 8 of the U.S. Constitution gave power to the Congress to "regulate Commerce with . . . the Indian Tribes."
- Removal Era (1823–1871): The beginning of this period is characterized by Chief Justice John Marshall's opinions, which set the precedent that Indian tribes were "domestic dependent nations" and that only the federal government had authority over these nations. Another significant enactment, the Indian Removal Act of 1830, stipulated the removal of a number of Indian groups to western reservations. The end of this period is marked by the Appropriations Act of 1871, which ended U.S. treaty-making with Indian tribes.
- Assimilation Era (1871–1934): This period is characterized by policies aiming to integrate Indian peoples into mainstream American society. The General Allotment/Dawes Act of 1887, which divided reservation lands into individual parcels, encouraged independent land holding and agriculture. "Surplus" lands were sold to non-Indians. The Indian Citizenship Act of 1924 conferred citizenship on Indian people who had not already gained that status through service in the armed forces, assimilation, or other methods.
- Reorganization Era (1934–1953): In 1934, the Wheeler-Howard/Indian Reorganization Act sought to restore some vestiges of tribal sovereignty lost during the Assimilation Era. Tribes were encouraged to establish formal governments and constitutions.
- Termination Era (1953–1968): House Concurrent Resolution 108 reversed federal policy of tribal self-governance and abolished more than 50 tribal governments. This period also is characterized by federally funded programs to move individuals from the reservation to major cities.
- Self-Determination Era (1968–Present): Stirring of Indian consciousness following the Termination Era led to a dramatic increase in Native American advocacy for self-governance. In 1978, the Bureau of Indian Affairs established the modern Federal Acknowledgment Process. As of April 12, 2011, 565 tribes had been federally recognized.
- Agency: An administrative unit of government receiving federal or state support.
- Consultation: The process of requesting, discussing, and considering the opinion of others, and when possible, seeking agreement on the management and identification of historic properties. Several laws require agencies to consult with federally recognized Indian tribes if a project will have an effect on tribal historical or cultural resources. This requirement applies to all tribes with historic ties to an area, not just those with reservations within current boundaries of the state.
- Federally Recognized Indian Tribe: An Indian tribe, nation, or other organized group or community recognized by the U.S. Secretary of Interior as eligible for certain federal government services and benefits. A list of federally recognized tribes is published annually in the Federal Register.
- Government-to-Government: The nature of the relationship between the federal government and Indian tribal governments, acknowledging tribal sovereignty and rights of self-governance.
- Memorandum of Agreement (MOA): An agreement document that records specific terms and conditions to resolve known adverse effects on historic properties.
- Museum (for NAGPRA purposes): "[A]ny institution or state or local government agency (including institutions of higher learning) that receives federal funds and has possession of, or control over, Native American cultural items." 1
- Public Land: Any lands owned or administered by the federal or state government, including political subdivisions of a state such as cities, towns, and counties.
- Programmatic Agreement (PA): An agreement document that records specific terms and conditions to streamline or improve the standard 106 process for an agency program.
- Repatriation: The process through which American Indian cultural items, including human remains, funerary objects, and sacred objects, are returned to lineal descendants or culturally affiliated Indian tribes.
- Traditional Cultural Property (TCP): Places that derive significance from their association with cultural practices or beliefs of a living community.
- Tribal Historic Preservation Officer (THPO): A designated tribal official who has undertaken some or all of the responsibilities of the State Historic Preservation Officer on tribal land. THPOs also may develop and implement historic preservation plans, coordinate repatriation efforts, develop cultural/heritage tourism and educational outreach programs, and direct other preservation activities.
- Trust Relationship: The fiduciary responsibilities of the federal government to protect tribal sovereignty, self-determination, assets and resources, and treaty and other reserved rights.
- Undertaking: "A project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a federal agency, including those carried out by or on behalf of a federal agency; those carried out with federal financial assistance; and those requiring a federal permit, license or approval." 2
1 Native American Graves Protection and Repatriation Act, Public Law 101-601, U.S. Code 25 (1990), §3001 (8).
2 National Historic Preservation Act, Public Law 89-665; U.S. Code 16 (1966), §470w (7).